judicial ideology as a check on executive power...may 09, 2020 · trump ’s recent ... between...

Judicial Ideology as a Check on Executive Power

DAVID E. ADELMAN† & ROBERT L. GLICKSMAN‡

The ideological outlook of federal judges has long been a focal point

for criticism of the judiciary, but it has taken on new urgency with the

escalating political rhetoric and polarization in Washington. President

Trump’s recent reference to a district court judge as an “Obama

Judge,” after the judge ruled against the Administration in an

immigration case, exemplifies the increasingly partisan view of federal

judges. In an unusually high-profile response, Chief Justice Roberts

defended the judiciary by asserting categorically that “[w]e do not have

Obama judges or Trump judges, Bush judges or Clinton

judges . . . . What we have is an extraordinary group of dedicated

judges doing their level best to do equal right to those appearing before

them.”

Justice Roberts’s statement may appear defensive or naive, particularly

in an era of hyper-politicized judicial confirmations. However, setting

aside the Supreme Court, the evidence that exists on the influence of

judicial ideology is mixed at best, as most empirical studies find that a

judge’s politics have only a modest impact on case outcomes. Existing

studies also overlook how changes in executive branch policies affect

judicial review and thus confound the influence of judicial ideology with

presidential politics. In this study, we find that the influence of judicial

ideology on case outcomes is mediated by the partisanship of the

executive branch. Thus, while public debates about the federal judiciary

focus on whether judges are political, the underlying driver is often

politically driven conflicts between executive branch policies and

governing statutes.

Overall, judicial ideology affected case outcomes in less than five

percent of the appellate cases we analyzed over roughly a fifteen-year

period spanning the George W. Bush and Barack Obama

Administrations. The influence of ideology on case outcomes was lowest

during the Obama Administration, when presidential politics aligned

strongly with the environmental laws we studied. Moreover, when it was

a factor during the Bush Administration, judicial ideology had a

moderating effect on executive branch policies through judicial

† Harry Reasoner Regents Chair in Law, University of Texas School of Law.

‡ J.B. & Maurice C. Shapiro Professor of Environmental Law, The George

Washington University Law School. The authors are indebted to the following research

assistants for their help in coding the cases analyzed in this Article: Ashleigh Acevedo, Diego

Bustillos, Carlos Castaneda, Emily Catron, Lindsay Dofelmier, Tyler Liu, Kathleen

Pritchard, and William Yon, as well as the valuable feedback and comments we received

from Richard Pierce, Ricky Revesz, and Chris Walker.

176 OHIO STATE LAW JOURNAL [Vol. 81:2

opinions that guided policies towards centrist positions more in line

with statutory mandates, which may or may not align with the current

political views of the executive branch or Congress.

TABLE OF CONTENTS

I. INTRODUCTION .................................................................................. 176 II. JUDICIAL IDEOLOGY AND THE MODERATING EFFECT OF

CONSENSUS VOTING ....................................................................... 183 A. Empirical Studies of Politics in Judicial Decision-Making ... 185

B. Viewing Judicial Politics in Absolute Rather than Relative

Terms .................................................................................... 194

III. REEXAMINING JUDICIAL REVIEW IN LIGHT OF CIRCUIT

STRUCTURES, JUDICIAL IDEOLOGY, AND PRESIDENTIAL POLITICS ..... 196 A. Patterns of Litigation over Space and Time .......................... 199

B. The Relative Importance of Institutional and Political

Factors .................................................................................. 205

1. The Principal Predictors of Case Outcomes .................... 206 2. Presidential Politics and Plaintiff Success Rates ............. 209 3. Appellate Panels Effects and Circuit Structure ................ 211

4. Judicial Ideology and Case Outcomes .............................. 213 IV. INSTITUTIONAL MECHANISMS THAT MEDIATE POLITICS IN THE

FEDERAL JUDICIAL SYSTEM ............................................................ 214 A. Institutional Constraints on the Influence of Judicial

Ideology ................................................................................ 216 B. Judicial Ideology as an Instrument of Political Moderation ... 218

C. Inter-Circuit Difference in Case Outcomes ........................... 223 D. Insights into Contemporary Debates About the Structure

of Federal Courts .................................................................. 225 1. Anticipating the Consequence of Splitting the Ninth

Circuit ............................................................................. 226 2. The Tradeoffs of General Versus Limited Appellate

Court Jurisdiction ........................................................... 229 3. Misconceptions About Ideologically Driven Court

Packing ........................................................................... 231 V. CONCLUSION .................................................................................... 233

I. INTRODUCTION

The ideological outlook of federal judges has long been a focal point for

criticism of the judiciary, but it has taken on new urgency with the escalating

2020] JUDICIAL IDEOLOGY AS A CHECK ON EXECUTIVE POWER 177

political rhetoric and polarization in Washington.1 President Trump’s recent

reference to district court Judge Jon Tigar as an “Obama Judge,” after he ruled

against the Administration in an immigration asylum case, exemplifies the

increasingly partisan view of federal judges.2 In an unusually high-profile

response, Chief Justice Roberts defended the judiciary by asserting categorically

that:

We do not have Obama judges or Trump judges, Bush judges or Clinton

judges . . . . What we have is an extraordinary group of dedicated judges doing

their level best to do equal right to those appearing before them. That

independent judiciary is something we should all be thankful for.3

Justice Roberts’s statement may appear defensive or naive, particularly in

an era of hyper-politicized judicial confirmations.4 However, setting aside the

1 See, e.g., Daniel Bush, Trump’s Conservative Picks Will Impact Courts for Decades,

PBS NEWSHOUR (Oct. 25, 2019), https://www.pbs.org/newshour/politics/trumps-

conservative-picks-will-impact-courts-for-decades [https://perma.cc/UR7K-99NV];

Kevin Schaul & Kevin Uhrmacher, How Trump Is Shifting the Most Important Courts in the

Country, WASH. POST (Sept. 4, 2018), https://www.washingtonpost.com/graphics/

2018/politics/trump-federal-judges/ [https://perma.cc/V9AD-DXUJ]; Jason Zengerle,

How the Trump Administration Is Remaking the Courts, N.Y. TIMES MAG. (Aug. 22,

2018), https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary

.html [https://perma.cc/L4QG-VJM8].

2 Adam Liptak, Chief Justice Defends Judicial Independence After Trump Attacks

‘Obama Judge,’ N.Y. TIMES (Nov. 21, 2018), https://www.nytimes.com/2018/11/21/us/

politics/trump-chief-justice-roberts-rebuke.html [https://perma.cc/E3L7-83ZY]; see

also Jess Bravin, No Obama or Trump Judges Here, Appointees of Both Declare, WALL ST.

J. (Sept. 15, 2019), https://www.wsj.com/articles/judges-say-they-arent-extensions-of-

presidents-who-appointed-them-11568566598 [https://perma.cc/RUJ6-JCLX].

3 Liptak, supra note 2. President Trump followed up with “[s]orry Chief Justice John

Roberts, but you do indeed have ‘Obama judges,’ . . . and they have a much different point

of view than the people who are charged with the safety of our country.” Id.

4 Joan Biskupic, The ‘Partisan’ Players Transforming the Supreme Court, WASH.

POST (June 21, 2019), https://www.washingtonpost.com/outlook/the-partisan-players-

transforming-the-supreme-court/2019/06/21/9cc6596a-8964-11e9-98c1-e945ae5db8f

b_story.html [https://perma.cc/L5AN-VHAY]; Thomas Kaplan, Trump Is Putting

Indelible Conservative Stamp on Judiciary, N.Y. TIMES (July 31, 2018), https://

www.nytimes.com/2018/07/31/us/politics/trump-judges.html [https://perma.cc/8DE2

-M5VC]; Rorie Spill Solberg & Eric N. Waltenburg, Are Trump’s Judicial Nominees Really

Being Confirmed at a Record Pace? The Answer Is Complicated, WASH. POST (June 14,

2018), https://www.washingtonpost.com/news/monkey-cage/wp/2018/06/14/are-trumps

-judicial-nominees-really-being-confirmed-at-a-record-pace-the-answer-is-complicated

[https://perma.cc/UY6U-7HV7]; Sean Sullivan & Mike DeBonis, With Little Fanfare,

Trump and McConnell Reshape the Nation’s Circuit Courts, WASH. POST (Aug. 14, 2018),

https://www.washingtonpost.com/powerpost/with-little-fanfare-trump-and-mcconnell-res

hape-the-nations-circuit-courts/2018/08/14/10610028-9fcd-11e8-93e3-24d1703d2a7a

_story.html [https://perma.cc/PF3T-P9H4]; Evan Thomas, How Supreme Court

Nominations Became So Partisan, N.Y. TIMES (June 23, 2019), https://www.nytimes

.com/2019/06/23/books/review/carl-hulse-confirmation-bias.html [https://perma.cc/


Supreme Court, the evidence that exists on the influence of judicial ideology is

mixed at best, as most empirical studies find that a judge’s politics have only a

modest impact on case outcomes.5 The disconnect between perceptions and

empirics persists, in part, because most studies emphasize the disparities

between Republican- and Democratic-appointed judges through the exclusive

use of relative rates for case outcomes without considering the small absolute

number of cases impacted.6 Further, existing studies overlook how changes in

executive branch policies affect judicial review and thus confound the influence

of judicial ideology with presidential politics.7 We find that the influence of

judicial ideology on case outcomes is mediated by the partisanship of the

executive branch.8 Thus, while public debates about the federal judiciary focus

on whether judges are political,9 the underlying driver is often politically driven

conflicts between executive branch policies and statutory mandates.

This Article examines the influence of judicial ideology in administrative

review cases and presents new empirical results that qualify its significance in

district and appellate courts. Focusing on litigation under two prominent

environmental laws, the National Environmental Policy Act (NEPA) and the

Endangered Species Act (ESA), we observe statistically significant differences

in plaintiffs’ success rates across circuits and presidential administrations. Our

data span the George W. Bush and Barack Obama Administrations, which

provide contrasting ideological outlooks for assessing the impact of presidential

politics on judicial review. Overall, we find that the influence of judicial

ideology affects case outcomes in less than five percent of the appellate cases.10

J2QM-484P] (reviewing CARL HULSE, CONFIRMATION BIAS: INSIDE WASHINGTON’S WAR

OVER THE SUPREME COURT, FROM SCALIA’S DEATH TO JUSTICE KAVANAUGH (2019)).

5 See, e.g., Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness

Review, 75 U. CHI. L. REV. 761, 807 (2008) [hereinafter Miles & Sunstein, Real World]

(finding that “our data demonstrate that judicial ideology is not playing a dominant role and

that judicial policy choices are not driving arbitrariness review”).

6 See, e.g., id. (explaining that “Republican appointees vote to validate most liberal

agency decisions, and Democratic appointees vote to validate most conservative agency

decisions”).

7 See, e.g., Cass R. Sunstein et al., Ideological Voting on Federal Courts of Appeals:

A Preliminary Investigation, 90 VA. L. REV. 301, 304 (2004) (proposing three hypotheses to

explain ideological voting but not addressing the role of presidential ideology).

8 See infra Part IV.

9 See, e.g., Carl Hulse, Political Polarization Takes Hold of the Supreme Court, N.Y.

TIMES (July 5, 2018), https://www.nytimes.com/2018/07/05/us/politics/political -polar

ization-supreme-court.html [https://perma.cc/MDY9-Z686].

10 We define each judge’s political/ideological outlook by the party of the appointing

president: judges appointed by Republican presidents were designated as Republican judges;

judges appointed by Democratic presidents were designated as Democratic judges. The party

of the appointing president is a rough proxy for judicial ideology, but it has the virtue that it

errs on the side of obscuring the impact of ideology because the party of the appointing

president does not necessarily reflect the ideology of the judge. Accordingly, if we observe

a statistically significant effect, it is likely to be a lower bound on the actual influence of

ideology.


In absolute terms, this translates to about 9 cases out of 180 under the ESA and

11 cases out of 334 under NEPA over roughly a fifteen-year period. The

influence of judicial ideology was lowest during the Obama Administration,

when presidential politics aligned strongly with the two environmental

statutes.11 Moreover, when it was a factor, judicial ideology had a moderating

effect on executive branch policies through judicial opinions that guided

policies towards centrist positions consistent with statutory mandates.12 These

findings demonstrate the critical role that external political factors play in

mediating the influence of judicial ideology and elucidate the conditions under

which they can break down.

A rich literature, focused largely on the Supreme Court and federal appellate

courts, has evolved over the last two decades and examines the influence of

ideology on judicial review.13 Researchers have found that judicial ideology is

a statistically significant factor in the resolution of cases over a wide range of

legal areas, and that the Supreme Court—as opposed to the Executive or

Congress—has the greatest influence on judicial decision-making.14 They also

find that the influence of judicial ideology is moderated on appellate panels with

a mix of Republican- and Democratic-appointed judges, largely owing to the

11 See, e.g., President Obama Brings Back ESA Consultation, WILDLIFE MGMT. INST.

(Mar. 15, 2009), https://wildlifemanagement.institute/outdoor-news-bulletin/march-

2009/president-obama-brings-back-esa-consultation [https://perma.cc/W7ZS-MANR];

Steps to Modernize and Reinvigorate NEPA, OBAMA WHITE HOUSE, https://obama

whitehouse.archives.gov/administration/eop/ceq/initiatives/nepa [https://perma.cc/75

64-YGL2].

12 See infra Part IV.D.

13 See Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 MICH.

L. REV. 1, 28 (2017); Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and

Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE

L.J. 2155, 2155–56 (1998); Joshua B. Fischman, Estimating Preferences of Circuit Judges:

A Model of Consensus Voting, 54 J.L. & ECON. 781, 781 (2011) [hereinafter Fischman,

Estimating Preferences]; Joshua B. Fischman, Interpreting Circuit Court Voting Patterns:

A Social Interactions Framework, 31 J.L. ECON. & ORG. 808, 808 (2013) [hereinafter

Fischman, Voting Patterns]; Morgan Hazelton et al., Panel Effects in Administrative Law: A

Study of Rules, Standards, and Judicial Whistleblowing, 71 SMU L. REV. 445, 445 (2018);

Stefanie A. Lindquist & Susan B. Haire, Decision Making by an Agent with Multiple

Principals: Environmental Policy in the U.S. Courts of Appeals, in INSTITUTIONAL GAMES

AND THE U.S. SUPREME COURT 230 (James R. Rogers et al. eds., 2006); Thomas J. Miles &

Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of

Chevron, 73 U. CHI. L. REV. 823, 825–26 (2006) [hereinafter Miles & Sunstein, Policy];

Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L.

REV. 1717, 1717–19 (1997) [hereinafter Revesz, Ideology]; Peter H. Schuck & E. Donald

Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990

DUKE L.J. 984, 988; Matthew Spitzer & Eric Talley, Left, Right, and Center: Strategic

Information Acquisition and Diversity in Judicial Panels, 29 J.L. ECON. & ORG. 638, 638

(2013); Sunstein et al., supra note 7, at 304.

14 See, e.g., Revesz, Ideology, supra note 13, at 1767–68 (explaining that the D.C.

Circuit regards the Supreme Court, rather than Congress, “as the primary reviewer of their

decisions”).


strong norm of unanimity that exists on appellate courts.15 The prominence of

these “panel effects” has produced different models of judicial decision-making,

ranging from deliberative theories, in which judges influence each other through

persuasive argumentation, to whistleblower theories, in which a judge’s threat

to dissent in a case provides leverage for compromise with her colleagues.16 The

literature explores the practical and normative implications of these and other

theories, but no single theory has prevailed that explains why ideologically

mixed panels have such a powerful moderating effect on opinions.17 We extend

this work by incorporating new factors into the analysis and by evaluating the

results in context to assess their practical significance.

This study differs from the existing literature by covering an extended time

period, roughly fifteen years, and by including geographic information at the

national, circuit, and state levels. We focus on litigation under NEPA and the

ESA because they are frequently the subject of litigation and have long been the

target of intense political battles.18 Both statutes are currently the target of major

regulatory and legislative reform efforts,19 and concerns about litigation are a

prominent theme.20 Litigation under NEPA and the ESA has the additional

15 See Sunstein et al., supra note 7, at 337–38 (explaining the phenomenon of “collegial

concurrences”).

16 See id. at 344–45 (describing the “whistleblower effect”).

17 See infra Part II.

18 See Jacob W. Malcom & Ya-Wei Li, Data Contradict Common Perceptions About a

Controversial Provision of the US Endangered Species Act, 112 PNAS 15,844, 15,844

(2015); Marion D. Miller, The National Environmental Policy Act and Judicial Review After

Robertson v. Methow Valley Citizens Council and Marsh v. Oregon Natural Resources

Council, 18 ECOLOGY L.Q. 223, 236 (1991) (“NEPA thus remains a lightning rod for

conflicting views concerning the degree to which environmental protection should be

implemented through federal planning procedures.”).

19 See, e.g., Timothy Cama, Senate GOP Seeks Overhaul of Endangered Species Act,

HILL (July 2, 2018), http://thehill.com/policy/energy-environment/395135-senate-gop-

seeks-overhaul-of-endangered-species-act [https://perma.cc/UK6K-8JAY] (describing

“an ambitious effort to overhaul the [ESA]”); Coral Davenport & Lisa Friedman,

Lawmakers, Lobbyists and the Administration Join Forces to Overhaul the Endangered

Species Act, N.Y. TIMES (July 22, 2018), https://www.nytimes.com/2018/07/22/climate

/endangered-species-act-trump-administration.html [https://perma.cc/972N-D5DR];

DIANE KATZ, HERITAGE FOUND., TIME TO REPEAL THE OBSOLETE NATIONAL

ENVIRONMENTAL POLICY ACT (NEPA) (Mar. 2018), https://www.heritage.org/sites/

default/files/2018-03/BG3293_0.pdf [https://perma.cc/9KM7-6YPK] (urging NEPA’s

repeal); Laura Zuckerman, Scientists Voice Opposition to Weakening of U.S. Endangered

Species Act, REUTERS (Sept. 24, 2018), https://www.reuters.com/article/us-usa-wildlife-

endangered/scientists-voice-opposition-to-weakening-of-u-s-endangered-species-act-id

USKCN1M42PG [https://perma.cc/5VDY-NS4H] (describing accusation that the Trump

Administration is trying to erode the ESA in favor of commercial interests).

20 See, e.g., Examining ‘Sue and Settle’ Agreements: Part I: Joint Hearing Before the

Subcomm. on Interior, Energy, and Env’t and the Subcomm. on Intergovernmental Affairs

of the H. Comm. on Oversight and Gov’t Reform, 115th Cong. 55–63 (2017) (statement of

Kent Holsinger, Manager, Holsinger Law, LLC), https://oversight.house.gov/wp-content/

uploads/2017/05/Holsinger_Testimony_Sue-and-Settle_05242017.pdf [https://perma


virtue that it is unevenly distributed across the country (nearly two-thirds of the

cases were filed in the Ninth and D.C. Circuits), which strengthened our

statistical analyses and inter-circuit comparisons.21 Finally, both statutes have

powerful procedural mandates that federal judges interpret strictly.22 The legal

posture of the cases consequently heightens the influence of judicial ideology

because judges are less deferential to federal agencies when such procedural

claims are raised than, for example, when administrative challenges implicate

agency expertise or experience.23

The distinctive attributes of the cases and the duration of our study expose

the conditions under which judicial review is more likely to check executive

power. In district courts, we find that plaintiffs were 1.8 times more likely to

prevail before a Democratic than a Republican judge, and they were 2.5 times

more likely to prevail in the Ninth Circuit than in other circuits.24 At the

appellate level, environmental plaintiffs were two to four times more likely to

prevail before an all-Democratic panel than before a majority-Republican panel,

and they were about twice as likely to prevail during the Bush Administration

as during the Obama Administration.25 However, the disparity in case outcomes

between appellate panels dominated by judges with opposing political

affiliations largely disappeared during the Obama Administration, falling from

roughly thirty to five percentage points.26 Most of this convergence was

attributable to a decline in the rate at which majority-Democratic panels ruled

in favor of environmental plaintiffs, whereas little change was observed for

Republican-majority panels.27 In other words, judicial ideology had a

moderating effect overall on administrative policies during the Bush

.cc/BPR9-WC9E]; Press Release, House Comm. on Nat. Res., How Environmentalist

Litigation Is Sending Our National Forests up in Smoke (June 8, 2017), http://www

.freerangereport.com/how-environmentalist-litigation-is-sending-our-national-forests-up-

in-smoke/ [https://perma.cc/PCV6-84DK] (asserting that litigation under NEPA and the

ESA is “significantly hindering active management” of the national forests); cf. Patrick

Parenteau, Citizen Suits under the Endangered Species Act: Survival of the Fittest, 10

WIDENER L. REV. 321, 351 (2004) (characterizing the ESA’s citizen suit as “a potent weapon

for conservationists,” but noting the “ferocious political backlash” and legislative reform

efforts that such litigation has prompted).

21 See infra Figures 1–2.

22 See 42 U.S.C. § 4332 (2012); 16 U.S.C. § 1536(a)(2) (2012); see also Thomas v.

Peterson, 753 F.2d 754, 764 (9th Cir. 1985) (“[T]he strict substantive provisions of the ESA

justify more stringent enforcement of its procedural requirements, because the procedural

requirements are designed to ensure compliance with the substantive provisions.”); Daly v.

Volpe, 350 F. Supp. 252, 257−58 (W.D. Wash. 1972) (“The provisions of NEPA are not

highly flexible, but establish a strict standard of procedure.”).

23 See, e.g., Nat. Res. Def. Council, Inc. v. Sec. & Exch. Comm’n, 606 F.2d 1031,

1044–45 (D.C. Cir. 1979) (justifying less deferential review of NEPA procedural mandates

than of challenges to substantive matters based on relative expertise of courts and agencies).

24 See infra notes 16366 and accompanying text.



27 See infra Part III.B.1.


Administration, with Democratic judges guiding executive branch policies

towards a centrist position when they considered them to be inconsistent with

statutory mandates.

We believe that the variation observed in the influence of judicial ideology

is structural and that it is active during liberal and conservative administrations.

The principal factor is the political alignments and misalignments between

judges, the statute under review, and the presidential administration in power. If

a statute associated with liberal values, such as NEPA or the ESA, is under

review, the influence of judicial ideology will depend on the political orientation

of the presidential administration. During a Republican administration,

Republican judges will be sympathetic to the administration and unsympathetic

to the liberal goals of the statute (both factors aligning against plaintiffs seeking

to enforce statutory requirements), whereas Democratic judges will be

sympathetic to the goals of the statute but unsympathetic to the administration

(both factors aligning in favor of plaintiffs). Further, while ideological

differences between judges may be exacerbated by more extreme policies, the

effect on case outcomes will be asymmetric due to the deferential standards of

review under the Administrative Procedure Act (APA) and associated judicial

doctrines.28 During a Democratic administration, by contrast, Republican

judges will be unsympathetic to the statute’s goals and to the administration

(both factors essentially neutral towards plaintiffs), whereas Democratic judges

will be sympathetic to both (one factor favoring and the other working against

plaintiffs). These dynamics will reverse for statutes associated with conservative

values, such that judicial ideology will be influential during liberal

administrations but have little effect during conservative ones. The ideological

outlook of a judge therefore is most likely to be a factor when the politics of a

presidential administration are most at odds with the legal mandate of a statute

under review.

The Article is divided into three principal parts. We review the existing

literature on the influence of judicial ideology in federal courts in Part I,

focusing on the more complex dynamics of appellate courts and current theories

of judicial decision-making. In Part II, we present our study results and discuss

the inferences that can be drawn from several statistical regressions. The broad

descriptive statistics highlight the modest influence of judicial ideology in the

decisions of district and appellate courts, whereas the regression results provide

insights into the relative importance of different factors on case outcomes—the

influence of judicial ideology, presidential politics, and circuit-level attributes

(i.e., volume of cases, political balances of judges within a circuit, and any

systematic ideological bias of judges in a circuit). This analysis provides a more

complete picture of the factors that mediate the impact of a judge’s ideological

outlook on judicial review. Finally, Part III examines the normative and

28 For judges politically aligned with the administration, their only option is deferring

to the agency on issues concerning agency fact-finding, statutory interpretation, or the

adequacy of agency reason-giving, whereas judges with opposing political views can

overturn agency action in any of these areas.


practical implications of our results. We argue that the influence of judicial

ideology can enhance the likelihood of judicial checks on executive overreach,

but we caution that this is contingent on structural features of the federal courts

system and, in the administrative law context, the deferential nature of judicial

review. The insights provided by the expanded framework we propose is then

illustrated by applying that framework to three contemporary debates that center

on structural and jurisdictional aspects of the federal courts—proposals to break

up the Ninth Circuit, statutory provisions creating exclusive jurisdiction over

certain types of cases in specific courts, and partisan schemes to dramatically

expand the number of federal judges.

II. JUDICIAL IDEOLOGY AND THE MODERATING EFFECT OF CONSENSUS

VOTING

Studies examining the influence of judicial ideology on case outcomes date

back to the early 1990s.29 Over this time, the analytical methods have evolved

from simple hypothesis testing to multivariate methods and sophisticated study

designs developed to elucidate the influence of appellate judges on each other.30

At the same time, the areas of law studied have expanded from discrete fields,

such as environmental law, and specific courts, typically the D.C. Circuit, to

national studies that encompassed the most ideologically freighted fields of law,

including civil rights, labor law, affirmative action, constitutional takings, and

capital punishment.31 Throughout much of this work, the party of the appointing

president is used as a proxy for the ideological outlook of federal judges, with

judges appointed by Democratic presidents presumed to be “liberal” and judges

appointed by Republican presidents presumed to be “conservative.”32

Moreover, despite a proliferation of alternative, seemingly more sophisticated

proxies, the party of the appointing president remains a valid and robust proxy

for judicial ideology.33

Numerous hypotheses have been tested over the years, often formulated

through the lens of principal-agent theory.34 For example, scholars have

29 See, e.g., Schuck & Elliott, supra note 13, at 984, 988.

30 See, e.g., Hazelton et al., supra note 13, at 447.

31 See, e.g., Sunstein et al., supra note 7, at 311–12.

32 See Revesz, Ideology, supra note 13, at 1718–19.

33 Compare Fischman, Voting Patterns, supra note 13, at 819 (observing that “[w]hile

[the party of the appointing president is] admittedly a simplistic measure of judicial ideology,

this variable has been demonstrated to robustly correlate with judicial voting behavior across

a wide variety of issue areas”), and Jessie Allen, A Theory of Adjudication: Law as Magic,

41 SUFFOLK U. L. REV. 773, 822 (2008) (“The studies confirm that among federal appellate

judges, the party affiliation of the president who appointed a judge is a fairly strong predictor

of how the judge will rule in some types of cases whose outcomes are ideologically

polarized.”), with Joshua B. Fischman & David S. Law, What Is Judicial Ideology, and How

Should We Measure It?, 29 WASH. U. J.L. & POL’Y 133, 155 (2009) (noting that “proxy

variables have traditionally included the party of the President who appointed the judge”).

34 Lindquist & Haire, supra note 13, at 234–35.


evaluated whether strong congressional support for a challenged policy

increases the likelihood that judges will decide cases in its favor; whether

district and appellate court judges will be more (less) likely to decide cases in

favor of a policy when it is supported by the Supreme Court; and whether judges

appointed by a Democratic (Republican) president will be more (less) likely to

decide a case in favor of a liberal (conservative) policy.35 This work has shown

that the influence of Congress is typically weak and short-lived,36 and that the

influence of the Supreme Court’s jurisprudence is by far the most important

factor, although it too is found to have a relatively short half-life.37 The work on

judicial ideology, particularly in the Supreme Court and appellate courts, has

generated a greater mix of results and competing theories of judicial decision-

making, with no single theory clearly receiving consensus support.38 To this

day, theories of judicial decisions premised on “deliberative processes,”39

“whistleblowing dissents,”40 “collegial concurrences,”41 and “group

polarization”42 are debated and remain in contention with each other. We will

review the evolution of the leading empirical studies, focusing on appellate

35 Id. at 240–46 (concluding that busy judges will defer to expert agencies).

36 Id. at 255 (finding little evidence that presidential administrations influenced circuit

court decisions); Revesz, Ideology, supra note 13, at 1735 (suggesting, but not finding, that

the political balance of Congress could affect judicial votes due to the risk of a legislative

override).

37 Lindquist & Haire, supra note 13, at 255–56; Revesz, Ideology, supra note 13, at

1767–68 (finding support for the hypothesis that “judges act more ideologically when their

decisions are unlikely to be reviewed,” notably where only procedural challenges were at

issue, and that the Supreme Court, rather than Congress or the president, had the greatest

influence on D.C. Circuit judges).

38 See Hazelton et al., supra note 13, at 447–51 (discussing the competing theories of

judicial decision-making).

39 Revesz, Ideology, supra note 13, at 1732–34 (explaining that, according to the

“deliberation hypothesis” and “dissent hypothesis,” judges moderate their respective

positions through reasoned analysis of cases).

40 Cross & Tiller, supra note 13, at 2156 (stating that that the potential that a

“whistleblower” on an appellate panel “whose policy preferences differ from the

majority’s . . . will expose the majority’s manipulation or disregard of the applicable legal

doctrine” greatly diminishes the influence of ideology).

41 Sunstein et al., supra note 7, at 337–38 (providing a variety of reasons for the

prominence of “collegial concurrence” on ideologically mixed panels, ranging from the

impact of collective deliberations, to the burden and perceived futility of writing a dissent,

to conflict aversion among judges). The “dissent hypothesis” overlaps with collegial

concurrences, but it is limited to judges in the ideological minority moderating their position

to be consistent with the majority to avoid the burden of writing a dissent. Revesz, Ideology,

supra note 13, at 1732–34.

42 Sunstein et al., supra note 7, at 340–41 (attributing “group polarization” and the

tendency to “go to extremes” of ideologically uniform panels to the lack of opposing views

and arguments, the propensity for like-minded views to be self-reinforcing, and social

pressures between judges to align their views with those of their colleagues).


courts because so few studies of district courts exist, and critically assess their

implications.43

A. Empirical Studies of Politics in Judicial Decision-Making

Professor Richard Revesz published an early study of judicial ideology in

1997 that focused on environmental decisions in the D.C. Circuit between 1970

and 1994.44 Revesz’s findings centered on three hypotheses: (1) that the political

outlook of appellate judges would influence their decisions;45 (2) that

ideological voting would be a greater factor in cases less likely to be reviewed

by the Supreme Court;46 and (3) that “panel effects” driven by the politics of

judges on appellate panels would influence their decisions.47 While the results

had many nuances, the politics of the plaintiff(s) and panel effects were

observed to be important factors.48 The most consistent finding was that

appellate judges favored plaintiffs with interests consistent with their own

ideological preferences.49 By contrast, panel effects were more variable and

found to be particularly strong in industry challenges—both Republican and

Democratic judges “voted more ideologically on panels [with] at least one

colleague of the same party,” and the influence was substantially greater on all-

Republican panels.50 Revesz concluded that his data provided, at best, mixed

support for the “deliberation” and “dissent” hypotheses, with the only support

coming from industry challenges.51 In addition, Revesz found some evidence

that Republican judges were more likely to uphold decisions of the U.S.

43 But cf. Herbert M. Kritzer, Polarized Justice? Changing Patterns of Decision-

Making in the Federal Courts, 28 KAN. J.L. & PUB. POL’Y 309, 373 (2019) (finding evidence

of increasing polarization among district court judges, but to a lesser extent than among

Supreme Court justices, and positing that this difference may be because district judges’

decision-making “is primarily driven by law, facts, and precedent rather than their own

personal policy preferences”).

44 Revesz, Ideology, supra note 13, at 1721.

45 Specifically, Democratic judges will be more likely to reverse the U.S.

Environmental Protection Agency (EPA) if the plaintiff is an environmental organization,

whereas Republican judges will be more likely to reverse EPA if an industry group is the

plaintiff. Id. at 1728.

46 Revesz reasoned that, because procedural matters tend to be “very fact specific” and

rarely “involve . . . legal principle[s] of general applicability,” the Supreme Court very

seldom grants certiorari on such issues. Id. at 1729–31.

47 Id. at 1719. Revesz suggested further that “the party affiliation of the other judges on

the panel [will have] a greater bearing on a judge’s vote than his or her own affiliation.” Id.

48 For example, Revesz observed that environmental organizations have “far greater

success” in statutory cases than industry challengers and suggested that this difference could

be due to stricter triaging of cases given their limited resources. Id. at 1749.

49 Id. at 1742–43. However, while Republican judges were significantly more likely to

rule against the government in procedural challenges brought by industry, this was not true

of Democratic judges when the plaintiff was an environmental organization. Id. at 1749.


51 Id.


Environmental Protection Agency (EPA) “when they are defended in court by

a Republican administration, and that Democratic judges [will be] more likely

to do the reverse.”52

Frank Cross and Emerson Tiller53 published a similarly groundbreaking

study centered on judicial review of statutory interpretation by federal agencies

under the Chevron54 doctrine.55 Premising their analysis on a whistleblower

hypothesis,56 they argued that an appellate panel would be more likely to

comply with a legal doctrine “when [it] is politically or ideologically divided.”57

Their empirical results revealed that appellate panels were 31% more likely to

defer to an agency’s interpretation when the policy under review was in

alignment with the panel majority’s political preferences.58 Further, they found

that while ideologically divided panels adhered to the deferential Chevron

standard 62% of the time, ideologically uniform panels did so in only 33% of

52 Id. at 1735.

53 Cross & Tiller, supra note 13, at 2155.

54 Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

Chevron enunciates a two-step standard for judicial review of agency statutory

interpretations. Id. As interpreted by the lower courts, if a statute is clear, review is de novo.

Id. at 842−43; U.S. Sugar Corp v. EPA, 830 F.3d 579, 663 (D.C. Cir. 2016) (quoting Nat'l

Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007) (explaining that

at step one of Chevron, the court must “first examine the statute de novo, employing

traditional tools of statutory construction”)); Sung Kil Jang v. Lynch, 812 F.3d 1187, 1190

(9th Cir. 2015) (“At step one of the familiar Chevron analysis, we ask whether, ‘applying

the normal tools of statutory construction,’ the statute is ambiguous, INS v. St. Cyr, 533 U.S.

289, 321 n.45 (2001); we consider this question de novo.”); Mizrahi v. Gonzales, 492 F.3d

156, 158 (2d Cir. 2007) (“At Chevron step one, we consider de novo whether Congress has

clearly spoken to the question at issue.”). If the statute is ambiguous, however, courts are

obliged to defer to any permissible (reasonable) interpretation by the agency. Chevron, 467

U.S. at 843.

55 Cross and Tiller cite several preceding studies in the early 1990s of judicial review

under Chevron that were ultimately inconclusive regarding the significance of judicial

ideology. Cross & Tiller, supra note 13, at 2163 n.26, 2166 n.53; see Linda R. Cohen &

Matthew L. Spitzer, Solving the Chevron Puzzle, 57 L. & CONTEMP. PROBS. 65, 68 (1994)

(describing how a conservative Supreme Court signals to lower courts when to grant greater

deference to conservative agencies); Schuck & Elliott, supra note 13, at 991 (arguing that

Chevron represented a major change in administrative law and standards for judicial review

of an agency’s interpretation of its governing statute); see also Sidney A. Shapiro & Richard

E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative

Decisions, 44 DUKE L.J. 1051, 1052 (1995) (concluding that Chevron freed appellate courts

to render essentially political, outcome-oriented decisions).

56 Cross & Tiller, supra note 13, at 2156.

57 Id. at 2159.

58 Id. at 2169, 2171 (concluding that “when the agency’s policy outcome is consistent

with the policy preferences of the panel’s majority, the court is more likely to defer than if

there is no such convergence”).


the cases.59 The authors concluded that “the presence of a whistleblower makes

it almost twice as likely that [Chevron] will be followed when doctrine works

against the partisan policy preferences of the court majority.”60 Cross and

Tiller’s paper bolstered the empirical grounds for the influence of judicial

ideology on appellate courts and provided the clearest support to that date for

the mitigating effects of politically divided panels.

Professor Cass R. Sunstein along with several co-authors has published a

series of papers further exploring the impact of the ideological composition of

appellate panels on case outcomes.61 In a 2004 paper, he and his co-authors

examined the panel effects in appeals that spanned a broad range of subject

areas.62 Their principal findings were (1) that judges in the political minority on

politically divided panels often issue “collegial concurrences” that correspond

closely to the views of their panel colleagues; and (2) that judges on politically

uniform panels often succumb to “group polarization” when they amplify each

other’s ideological preferences.63 This study is also one of the few to examine

differences across circuits.64 The authors’ strongest finding was that case

outcomes were closely correlated with the balance of Republican and

Democratic judges in a circuit; specifically, the opinions in the Ninth and

Second Circuits were observed to be significantly more liberal than those in the

other circuits.65

In two subsequent papers, Professors Sunstein and Thomas Miles evaluated

the influence of ideology on judicial review of agency action.66 Focusing

exclusively on cases filed against the EPA and the National Labor Relations

59 Id. at 2171–72 (observing that “although the significance of these results is somewhat

less (p = 0.09)[,] . . . it is 17% less likely that the court will defer [under the Chevron

doctrine] when it is unified than when it is split 2-1”).

60 Id. at 2172.

61 Miles & Sunstein, Policy, supra note 13, at 823; Miles & Sunstein, Real World, supra

note 5, at 766; Sunstein et al., supra note 7, at 304.

62 Sunstein et al., supra note 7, at 304. The legal fields included affirmative action,

campaign finance, sex discrimination, disability discrimination, race discrimination, and

environmental regulation. Id.

63 Id. at 337–38, 340. The authors found that group polarization was most pronounced

on panels with exclusively Republican-appointed judges, who “vote[d] against industry

challenges” in environmental cases “just 27% of the time,” whereas panels with a Republican

majority did so in 50% of the cases, and those with a single Republican judge did so in 63%.

Id. at 323.

64 See id. at 307.

65 Id. at 332. The authors found that “[t]he rankings, in terms of ideology, correlate

strongly but not perfectly with the percentage of Democratic appointees on the relevant court

in 2002 (r = .59),” and that disparities in case outcomes between exclusively Democratic and

exclusively Republican panels in each circuit varied from less than 8% in the Third, Seventh,

and Fifth Circuits to 27% in the Ninth Circuit. Id.

66 Miles & Sunstein, Policy, supra note 13, at 825; Miles & Sunstein, Real World, supra

note 5, at 766.


Board (NLRB),67 the studies examined judicial voting patterns in cases

reviewing agency decisions defined as “conservative” if the plaintiff was a

public-interest organization and “liberal” if the plaintiff was a business entity.68

Following the work of Tiller and Cross, the first study focused on judicial review

under the Chevron doctrine and the results of this study reinforced those of the

prior one.69 The authors found that Democratic appointees were fourteen

percentage points more likely to affirm liberal agency decisions than Republican

appointees, while Republican appointees were nineteen percentage points more

likely to affirm conservative agency decisions than Democratic appointees.70

Their results also showed that panel effects were an overriding factor: the

presence of just one judge appointed by the opposing political party essentially

neutralized the influence of ideology.71 In summary, the authors concluded that

most of the differences observed in case outcomes were attributable to group

polarization on ideologically uniform panels.72

The second Miles and Sunstein study focused on judicial review under the

“arbitrary and capricious” standard of the APA.73 The most striking feature of

their results is a “seesaw pattern” in Republican and Democratic voting, which

they characterize as the “smoking gun” of ideological voting.74 Specifically,

“[w]hen the agency decision is liberal, the Democratic validation rate is 72

percent and the Republican validation rate is 58 percent. When the agency

decision is conservative, the Democratic validation rate drops to 55 percent and

67 Miles & Sunstein, Policy, supra note 13, at 825 (noting that the authors coded all

published opinions between 1990 and 2004; of the 253 opinions, “183 involved the EPA,

and 70 involved the NLRB”); Miles & Sunstein, Real World, supra note 5, at 774 (involving

coding of all published opinions between 1996 and 2006; of the 653 opinions, 554 involved

the NLRB and 99 involved the EPA).

68 Miles & Sunstein, Policy, supra note 13, at 830–31 (explaining that an agency

decision was coded as “conservative” or as “liberal” based, “simply and crudely, by

reference to the identity of the party challenging it”). The authors eschew using the party of

the president at the time the case was heard because administrations typically make a mix of

conservative and liberal decisions; empirically, they also observe little differences in judicial

voting across administrations. Id. at 850 tbl.8, 860 (finding about a twenty-four percentage-

point difference between Democratic and Republican judges during Democratic

administrations versus a thirteen percentage point difference during Republican

administrations).

69 Compare Cross & Tiller, supra note 13, at 2172, with Miles & Sunstein, Policy, supra

note 13, at 826–27.

70 Miles & Sunstein, Policy, supra note 13, at 826–27, 849. These differences more

than doubled for ideologically uniform panels to thirty-one percentage points for Democratic

panels reviewing liberal agency decisions and forty-nine percentage points for Republican

panels reviewing conservative agency decisions. Id. at 855 tbl.9, 856.

71 Id. at 858.

72 Id.

73 Miles & Sunstein, Real World, supra note 5, at 773–74. Similar to the Chevron study,

this study also “classif[ied] agency decisions as ‘conservative’ or ‘liberal’ on the basis of the

identity of the party making the challenge.” Id. at 775.

74 Id. at 806.


the Republican validation rate rises to 72 percent.”75 However, virtually all of

the seesawing they observed was associated with the NLRB opinions, which

accounted for 85% of the cases, whereas case outcomes before Republican and

Democratic judges differed by just two percentage points in the EPA opinions.76

The small sample sizes for the subclasses of conservative opinions and

ideologically uniform panels also limited the statistical grounding of their

results.77 Nevertheless, the authors suggest that the disparities in voting are

largely driven by ideologically uniform panels, citing the twenty-nine

percentage point disparity in affirmation rates between all-Democratic and all-

Republican panels.78 Further, although they concede that judicial ideology was

not a “dominant” factor,79 they caution that “[a]n unbalanced federal judiciary

might well act as a brake on agencies’ ability to implement the liberal or

conservative policies of a new executive.”80

Subsequent studies have incorporated a variety of statistical methods and

designs to elucidate the panel effects in appellate courts.81 While the newest

studies continue to find strong evidence that ideology is a factor in the decisions

75 Id. at 767. Similar to the earlier study, they did not observe statistically significant

differences across administrations. Id. at 782–83, 783 tbl.2. Looking at their data, “[d]uring

Democratic Presidencies, the validation rates of Democratic appointees in these cases were

[fourteen] percentage points higher than that of Republican appointees, and during

Republican Presidencies, this difference was only [six] percentage points.” Id. at 783.

76 Id. at 774, 779. Republican judges voted to validate EPA decisions in 73% of the

cases versus 71% for Democratic judges. Id. at 779, 779 fig.1. By contrast, the validation

rate of Democratic appointees for NLRB and EPA cases together was ten percentage points

higher than that of Republican appointees. Id. at 777 tbl.1. Moreover, this difference cannot

be accounted for by countervailing trends for liberal and conservative decisions by EPA

because almost 90% of the cases (580 out of 653) involved liberal decisions. See id.

77 Id. at 790.

78 Id. at 788–89.

79 Miles & Sunstein, Real World, supra note 5, at 807 (stating that “our data

demonstrate that judicial ideology is not playing a dominant role and that judicial policy

choices are not driving arbitrariness review”).

80 Id. at 811 (internal citations omitted). Similarly, they state that “[o]ur findings offer

a clear prediction for the future: when a judiciary consisting mostly of Democratic appointees

confronts a conservative executive branch, the rate of invalidations will be unusually high,

and so too when a judiciary consisting mostly of Republican appointees confronts a liberal

executive branch.” Id. at 768.

81 See, e.g., VIRGINIA A. HETTINGER ET AL., JUDGING ON A COLLEGIAL COURT:

INFLUENCES ON FEDERAL APPELLATE DECISION MAKING 2–3 (2006) (explaining their

analysis); Fischman, Estimating Preferences, supra note 13, at 781 (discussing the model

used in the study); Fischman, Voting Patterns, supra note 13, at 808 (discussing how the

approach is different from other empirical studies); Jonathan P. Kastellec, Panel

Composition and Judicial Compliance on the US Courts of Appeals, 23 J.L. ECON. & ORG.

421, 421 (2007) (explaining the model used in their study); Richard L. Revesz, Litigation

and Settlement in the Federal Appellate Courts: Impact of Panel Selection Procedures on

Ideologically Divided Courts, 29 J. LEGAL STUD. 685, 686, 688 (2000) (discussing the

purpose and layout of the study); Spitzer & Talley, supra note 13, at 638 (explaining the

model used in their study).


of appellate judges,82 the strong norm of consensus is consistently found to be

a crucial mitigating factor.83 Among the recent work, Joshua Fischman has

conducted several of the most innovative studies of panel effects. In a 2011

study of immigration cases in the Ninth Circuit, Fischman finds that Democratic

appointees supported asylum claimants in 25% of the cases they heard, whereas

Republican appointees did so in just 12%.84 Similar to Miles and Sunstein, he

finds that judges’ opinions were reinforced on ideologically uniform panels and

moderated on ideologically mixed ones.85 Fischman concludes that “the

hypothesis that judges vote independently can be rejected” and that “a norm of

consensus pushes judges’ voting rates toward the mean.”86 Fischman quantifies

this effect through a simulation, which estimates that judges voted consistent

with their personal views in only 55% of the cases.87 The striking disconnect

that Fischman uncovers between judges’ political outlooks and their voting

refutes claims that low dissent rates reflect the relative ease of deciding cases

and limited discretion that judges have in resolving them.88

In a subsequent meta-analysis of eleven prior studies and three new

datasets,89 Fischman provides compelling evidence that judges are influenced

by their colleagues’ votes in a case rather than their colleagues’ ideological

outlook.90 Across a wide range of legal areas, Fischman finds that “each

colleague’s vote increases a judge’s probability of voting in the same direction

82 See, e.g., Fischman, Estimating Preferences, supra note 13, at 793.

83 See, e.g., JONATHAN MATTHEW COHEN, INSIDE APPELLATE COURTS: THE IMPACT OF

COURT ORGANIZATION ON JUDICIAL DECISION MAKING IN THE UNITED STATES COURTS OF

APPEALS 102 tbl.6 (2002) (observing that about 95% of appellate cases have no dissent,

which reflects a strong norm of consensus among judges); Fischman, Estimating

Preferences, supra note 13, at 803–04 (recognizing the influence of “consensus voting”).

84 Fischman, Estimating Preferences, supra note 13, at 793.

85 See id. (finding that all-Democratic panels decided for the asylum claimant 35% of

the time, majority-Democratic panels 20% of the time, majority-Republican panels 15% of

the time, and all-Republican panels 6% of the time).

86 Id. at 796–98 (finding that a “consensus voting model correctly classifies 76 percent

of votes, the sincere voting model correctly classifies 67 percent, and the party-of-

appointment model correctly classifies 65 percent”).

87 Id. at 803.

88 See, e.g., Harry T. Edwards, The Judicial Function and the Elusive Goal of

Principled Decisionmaking, 1991 WIS. L. REV. 837, 838; Brian Z. Tamanaha, How an

Instrumental View of Law Corrodes the Rule of Law, 56 DEPAUL L. REV. 469, 470 (2007).

89 Fischman also exposes shortcomings in prior studies that qualify their findings

statistically; specifically, because they rely on judges’ political affiliation as a regressor, the

statistical models are misspecified due to endogenous effects. Fischman, Voting Patterns,

supra note 13, at 820–21.

90 See id. at 809 (describing the study as “compar[ing] two empirical models of panel

voting—one that models influence using colleagues’ characteristics, the other using

colleagues’ votes—and reexamin[ing] data from 11 prior studies of panel voting and three

novel data sets”). Fischman characterizes voting as an “endogenous” effect and judicial

ideology as a “contextual” effect: “Endogenous effects occur when an individual’s behavior

is influenced by the behavior of the group. Contextual effects occur when an individual’s

behavior is influenced by the characteristics of the group members.” Id. at 811.


by roughly 40 percentage points,”91 whereas the influence of a colleague’s

ideological outlook varies widely depending on the nature of the case.92 To put

this in perspective, Fischman estimates that the influence of colleagues’ votes is

equivalent to roughly 80% of the effect that would be observed if appellate

panels operated exclusively by consensus.93 In other words, panel effects that

mitigate the influence of judicial ideology are largely driven by the strong norm

of consensus among appellate judges. Fischman suggests that this lends

credence to theories, such as “dissent aversion” and “whistleblowing,” that turn

on votes in a specific case rather than colleagues’ generally held ideological

perspectives,94 whereas deliberative theories are less plausible because they

implicate the ideological perspectives of the judges.95 This study provides the

clearest empirical grounds for distinguishing among these competing theories.

Fischman concludes by estimating the influence of judicial ideology in

conjunction with mediating panel effects. To do this, he posits that disparities

in case outcomes between all-Democratic and all-Republican panels

“correspond to average differences between Democratic and Republican judges

if they voted autonomously.”96 Overall, he finds that the differences between

ideologically uniform panels will be 2.3 times larger than the differences

observed between individual Republican and Democratic judges.97 This ratio

91 Id. at 809−10. According to Fischman, “The impact of the norm of consensus appears

to be uniform across high- and low-profile cases, in complex cases as well as simple ones,

and in all circuits studied.” Id. at 829.

92 See id. at 827–29 (finding that “[t]he number of Democratic panel colleagues has a

significant effect on a judge’s vote in nine of the 14 regressions, and the impact of each

colleague’s party is typically one-half to two-thirds as large as the impact of a judge’s own

party”).

93 See id. at 810–11 (observing that “[t]he distinction between these effects depends

upon whether the colleagues’ characteristics have a direct impact on the judge’s vote or

whether the colleagues’ characteristics predict their votes, which in turn influence the judge’s

vote”).

94 Id. at 811–12 (“[Under] the ‘dissent aversion’ theory, a judge’s willingness to vote

in a particular direction is affected by the other judges’ votes. Judges’ votes may be

correlated with their colleagues’ characteristics, but only insofar as these characteristics

predict the colleagues’ votes. Similarly, ‘whistleblowing’ is a theory of endogenous effects,

since the majority is influenced by the minority judge’s willingness to dissent.”).

95 See Fischman, Voting Patterns, supra note 13, at 812 (suggesting that personal

beliefs may cause judges to work harder to find information or legal theories to support a

liberal vote, which will in turn influence their colleagues’ votes).

96 Id. at 834–35 (emphasis added). Fischman further observes that:

It represents the average difference in voting rates between the two types of judges,

given that they are constrained by panel colleagues. It does not predict how Democratic

and Republican judges would differ if voting autonomously. Nor does it capture the full

causal effect of substituting Democratic judges for Republican judges, since it does not

account for the impact of such substitutions on panel colleagues.

Id. at 835.

97 Id. at 835.


reflects the degree to which the views of the average judge are moderated on

ideologically mixed panels relative to their voting patterns if they were to vote

autonomously.98 Using these estimates, he finds that “different panels would

reach different results at least 20% of the time, and perhaps much more,”

assuming dissent rates that are typical of federal courts.99 While the contingency

rate he derives for panel-dependent case outcomes is significant, it is

substantially lower than the 30%–40% disparities between ideologically

uniform panels often highlighted in prior studies.100 Fischman’s work provides

a rigorous measure of the mediating effect that randomized three-judge panels

have on judicial ideology when the judiciary is ideologically balanced.101 The

picture that emerges is decidedly mixed—ideological differences between

judges are much greater than dissent rates would suggest, but they are held in

check by a strong norm of consensus and the low relative frequency of

ideologically uniform panels.

In a more recent project, Kent Barnett, Christina Boyd, and Christopher

Walker, based on a database of more than 1600 circuit court decisions over an

eleven-year period, assessed the extent to which judicial ideology affects review

of agency statutory interpretations.102 The authors concluded that “politics play

some role in how circuit courts review agency statutory interpretations,” with

conservative (liberal) panels being more likely to agree with conservative

(liberal) agency interpretations.103 They found, however, that “panels of all

ideological stripes use the [Chevron] framework similarly and reveal modest

ideological behavior.”104 Unlike Tiller and Cross, Barnett, Boyd, and Walker

found no “whistleblower effects” in appellate court application of Chevron,

concluding that:

98 Id. at 834–35. Fischman derives a within-panel multiplier for judges, as opposed to

the average judge on each side and finds that in most cases it ranges from 3.6 to 8.2. Id. at

836.

99 Id. at 836. Fischman notes that “[e]specially, ironic is Kress’s claim that ‘[i]t would

be surprising to find that the dissent rate was four percent yet judges disagreed in forty

percent of all cases,’ since his implied 10:1 ratio is easily within the plausible range for the

within-panel multiplier.” Id. at 836–38 (internal citation omitted).

100 See id. at 837 tbl.5, 838.

101 Fischman, Voting Patterns, supra note 13, at 838.

102 See generally Kent Barnett et al., Administrative Law’s Political Dynamics, 71

VAND. L. REV. 1463 (2018). For additional empirical evaluation of panel effects on judicial

review of agency statutory interpretations, see Hazelton et al., supra note 13, at 467−73.

103 Barnett et al., supra note 102, at 1468.

104 Id. They add:

For instance, both liberal and conservative panels are more likely to find the statute

unambiguous when the agency’s interpretation is contrary to the panel’s ideological

preferences. Likewise, both liberal and conservative panels are more likely to find the

statute ambiguous when the agency’s interpretation aligns with the panels’ ideological

preferences. This means that panels permit agencies more policymaking space when the

administrative interpretations are consistent with the panels’ views.

Id. at 1468–69.


[W]hether a panel is ideologically uniform or diverse does not affect whether

circuit courts apply the Chevron framework, nor does it affect agency-win rates

on judicial review. Indeed, we saw only minor differences at either ideological

extreme (where we would have most anticipated whistleblowing effects to

occur), and those differences were in the opposite direction than expected.105

The authors explain this apparently “startling” result as a product of

Chevron’s powerful constraint on the influence of partisanship in judicial

decision-making, leaving little room for a panel’s ideological composition to

play an additional constraining role.106 Thus, the authors conclude the

elimination or weakening of Chevron deference, as some scholars and judges

have called for,107 could enhance the role of partisanship in judicial review of

agency statutory interpretations and foster greater interpretive disparities.108

Professors Barnett, Boyd, and Walker conducted another study, based on

analysis of circuit court opinions handed down between 2003 and 2013, in

which they assessed the political dynamics of deciding whether to apply

Chevron deference.109 They concluded that judges do not consistently apply

Chevron.110 In particular, they found that liberal, moderate, and conservative

panels of appellate court judges are nearly equally likely to apply Chevron

deference when reviewing liberal agency interpretations.111 When reviewing

conservative agency interpretations, however, “liberal panels apply Chevron

significantly less frequently than conservative panels.”112 The authors argue

that, in light of these findings, “notable prior empirical studies reporting that

judges’ political preferences drive case outcomes when utilizing the Chevron

doctrine underreport the political dynamics at play in this arena.”113

105 Id. at 1469–70.

106 Id. at 1470.

107 See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016)

(Gorsuch, J., concurring) (arguing that Chevron “permit[s] executive bureaucracies to

swallow huge amounts of core judicial and legislative power and concentrate federal power

in a way that seems more than a little difficult to square with the Constitution of the framers’

design”); see also Kristin E. Hickman, To Repudiate or Merely Curtail? Justice Gorsuch

and Chevron Deference, 70 ALA. L. REV. 733, 737 (2019) (noting the likelihood that Justice

Gorsuch “will continue pushing the Court to curtail or even repudiate . . . Chevron”).

108 Barnett et al., supra note 102, at 1470.

109 See generally Kent Barnett et al., The Politics of Selecting Chevron Deference, 15 J.

EMPIRICAL LEGAL STUD. 597 (2018).

110 See id. at 599.

111 Id.

112 Id. Liberal judges apply Chevron as much as 16% less frequently than conservative

judges when reviewing conservative agency interpretations. Id. at 614.

113 Id. at 599 (emphasis added). The authors also found no evidence of whistleblower or

disciplining effects on mixed panels. Id. They posit that the increased flexibility courts have

in deciding whether to apply Chevron after cases such as United States v. Mead Corp., 533

U.S. 218 (2001), which was decided before their study period began, may have lessened the

need for “doctrine-based whistleblowing.” Id. at 616.


B. Viewing Judicial Politics in Absolute Rather than Relative Terms

All of the existing studies present their results in relative terms as percentage

differences, with little or no indication of the absolute number of cases at

stake.114 This oversight is important because ideologically uniform panels

account for roughly 26% of the cases litigated, assuming roughly equal numbers

of Republican and Democratic judges.115 For example, in the Sunstein and

Miles study of judicial review under the Chevron doctrine, there were twenty-

two all-Democratic panels and forty all-Republican panels, which together

accounted for about 25% of the total.116 If you assume that the affirmation rates

for the mixed panels reflected an “ideologically neutral” position, the “proper”

affirmation rate would be roughly 62%.117 Under this reading, all-Democratic

panels would be overly deferential to agencies in about 25% of the liberal cases

and not deferential enough in 8% of the conservative cases, whereas all-

Republican panels would not be sufficiently deferential in 12% of the liberal

cases and would be too deferential in 38% of the conservative cases. In absolute

terms, four cases with all-Democratic judges and eight cases with all-

Republican judges would have been wrongly decided over twenty-five years.118

This amounts to a “departure rate” from neutrality of 5%, which while not de

minimis, does not appear to be unreasonable—particularly given the vagueness

of the Chevron doctrine. A similar departure rate, 4% (27 out of 653 cases over

eleven years), is observed in Sunstein and Miles’s study of judicial review under

the arbitrary and capricious standard.119

The importance of considering absolute numbers of cases applies to all of

the empirical studies to date, which report differences between ideologically

mixed and uniform panels of roughly 10%–40%. Assuming, for example, an

average of 25% for the “departure rate” from neutrality of ideologically uniform

panels and relatively equal numbers of Democratic and Republican judges, the

overall departure rate for ideologically uniform panels would be about 6%.

114 See, e.g., Miles & Sunstein, Policy, supra note 13, at 870.

115 See id. at 855 tbl.9.

116 See id.

117 See id.

118 All-Democratic panels heard a total of fourteen liberal cases and 25% of fourteen is

three cases, and they heard eight conservative cases, and 8% of eight is one (rounding up),

for a total of four erroneous opinions. See id. Similarly, all-Republican panels heard a total

of twenty-seven liberal cases and 12% of twenty-seven is 3.2 cases, and they heard thirteen

conservative cases, and 38% of thirteen is 4.4, for a total of eight (rounding up) erroneous

opinions. See id.

119 Miles & Sunstein, Real World, supra note 5, at 788 tbl.3. In this study, the validation

rate for mixed panels was 65%, and the all-Democratic panels were overly deferential in

about 16% of the liberal cases and not deferential enough in 27% of the conservative cases,

whereas Republican judges were not sufficiently deferential in 12% of the liberal cases and

were too deferential in 17% of the conservative cases. See id. Thus, the decisions of ten all-

Democratic panels and seventeen all-Republican panels were wrongly decided, for a total of

twenty-seven out of 653 (4%) over eleven years, or about 2.5 per year. Id.


However, as the Sunstein and Miles studies illustrate, the actual number of

“ideologically decided” cases annually will be very low, no more than a handful,

in most areas of law.120 Further, aggregate national statistics ignore the

geographic structure of the appellate court system, which is in part designed to

reflect differing ideological preferences across the country.121 This variability

is implicit in the deference given to senators for the states encompassed by the

circuit to which a judge is being appointed; the appointment process is designed

to ensure that the outlook and jurisprudence of federal judges will, at least in

part, reflect the perspectives of the states from which the cases they hear

originate.122

One of the most important points we draw from the literature is the

resilience of the federal judiciary to ideological variance across judges. This is

an inherent byproduct of randomized selection of three-judge panels in federal

appellate courts.123 In the current political context, it is especially important to

be measured when interpreting the results of empirical studies on the influence

of judicial ideology. Overall, the existing empirical studies provide few grounds

for concluding that ideology is an overriding factor in appellate cases—in

absolute or relative terms; in many areas of law, the studies suggest that ideology

will affect a handful of cases over the course of a decade at the appellate level.124

Further, national statistics can be misleading insofar as they convolve inter-

circuit variance, which is built into the system, and inter-judge variance, which

is potentially more problematic. Understanding the relative importance of

circuit-level and inter-judge effects remains an open question of critical

importance to the controversy surrounding judicial appointments and the

politics of judges. The work reported below examines these inter-circuit effects

and looks more closely at the influence of presidential politics by evaluating

differences in case outcomes across administrations, which has been overlooked

so far in the literature.

120 See id.; see also Miles & Sunstein, Policy, supra note 13, at 855 tbl.9.

121 See, e.g., Miles & Sunstein, Real World, supra note 5, at 765–66.

122 See Ryan J. Owens et al., Ideology, Qualifications, and Covert Senate Obstruction

of Federal Court Nominations, 2014 U. ILL. L. REV. 347, 369–70 (describing the “blue slip”

process). During the Trump Administration, Republican majorities in the Senate ignored

blue slips filed by Democratic senators, reflecting the increasingly partisan nature of judicial

nominations in the Senate. See Seung Min Kim, Grassley Rips up ‘Blue Slip’ for a Pair of

Trump Court Picks, POLITICO (Nov. 16, 2017), https://www.politico.com/story/2017/

11/16/chuck-grassley-trump-court-picks-245367 [https://perma.cc/RN6J-4THK]; see

also Jordain Carney, Senate Reignites Blue Slip War over Trump Court Picks, HILL (Feb.

24, 2019), https://thehill.com/homenews/senate/431232-senate-reignites-blue-slip-war-

over-trump-court-picks [https://perma.cc/576W-6AR5].

123 See Fischman, Estimating Preferences, supra note 13, at 782 (noting that the cases

assigned to and composition of judicial panels are random).

124 See, e.g., Miles & Sunstein, Policy, supra note 13, at 855 tbl.9.


III. REEXAMINING JUDICIAL REVIEW IN LIGHT OF CIRCUIT STRUCTURES,

JUDICIAL IDEOLOGY, AND PRESIDENTIAL POLITICS

NEPA and the ESA are among the most important and most heavily litigated

federal environmental statutes.125 Within the broader domain of public law,

NEPA is exemplary of a purely procedural legal framework that covers all

federal agencies, whereas the ESA is much narrower in scope and contains a

mix of procedural elements (that mirror those found in NEPA) and strict

standards.126 Both statutes implicate important economic interests in the public

and private spheres, and they often involve highly technical questions that

require difficult scientific judgments to be made by government officials.127

These characteristics create a valuable context in which to assess the influence

of judicial ideology, as they raise countervailing factors that weigh for or against

deferring to agency judgment. For example, the complexity and uncertainty in

environmental science often favors greater deference to agencies, particularly

on substantive regulatory determinations, but the procedural focus and express

purpose of each statute to promote adequate consideration of environmental

impacts by federal agencies is premised on a less deferential approach to judicial

review. In addition, to the extent that purely procedural questions are less likely

to be reviewed by appellate courts or the Supreme Court, there is evidence that

judicial ideology has greater influence on case outcomes.128

NEPA, which went into effect on January 1, 1970, established a national

policy to “encourage productive and enjoyable harmony between man and his

environment; to promote efforts which will prevent, or eliminate damage to the

environment and biosphere and stimulate the health and welfare of man; [and]

to enrich the understanding of the ecological systems and natural resources

important to the Nation.”129

It declares a “continuing policy of the Federal government . . . to use all

practicable means and measures . . . to create and maintain conditions under

which man and nature can exist in productive harmony, and fulfill the social,

economic, and other requirements of present and future generations of

Americans.”130

125 See Malcom & Li, supra note 18, at 15,844; see also Miller, supra note 18, at 223–

24.

126 Compare National Environment Policy Act of 1969, 42 U.S.C. § 4321 (2012), with

Endangered Species Act of 1973, 16 U.S.C. § 1531 (2012).

127 Malcom & Li, supra note 18, at 15,845; see also Miller, supra note 18, at 223–24.

128 See, e.g., Nat. Res. Def. Council, Inc. v. Sec. & Exch. Comm’n, 606 F.2d 1031,

1044–45 (D.C. Cir. 1979) (stating that judicial review is appropriate for reviewing

procedural decisions in a limited context).

129 42 U.S.C. § 4321 (2012).

130 Id. § 4331(a). To fulfill this policy, the statute makes it “the continuing responsibility

of the Federal Government to use all practicable means, consistent with other essential

considerations of national policy, to improve and coordinate Federal plans, functions,

programs, and resources.” Id. § 4331(b).


Notwithstanding these ambitious goals, NEPA has only one significant

operative provision. It directs all federal agencies to “include in every

recommendation or report on proposals for legislation and other major Federal

actions significantly affecting the quality of the human environment, a detailed

statement,”131 which is referred to as an environmental impact statement (EIS),

that assesses the proposal’s environmental impact.132 Each EIS is also required

to consider the alternatives to the proposed action, including a comparative

evaluation of their environmental impacts.133 If an agency determines that a

proposed action lacks one of the triggers for preparation of an EIS, most

commonly that it will not have significant environmental impacts, it may

prepare an environmental assessment (EA) along with a finding of no significant

impact.134 However, judicial review is limited to procedural violations, such as

failure to prepare an EIS when the statute required one135 or preparation of an

inadequate EIS.136

The ESA’s goals are similarly ambitious. Its declared purposes are “to

provide a means whereby the ecosystem upon which endangered species and

threatened species depend may be conserved [and] to provide a program for the

conservation of such endangered species and threatened species.”137 Two

agencies are responsible for overseeing implementation of the ESA, the Interior

Department’s Fish and Wildlife Service (FWS) and the Commerce

Department’s National Marine Fisheries Service (NMFS) (the Services).138

They are charged with listing species that qualify as endangered or threatened139

and designating their critical habitat.140 The statute provides for the preparation

of recovery plans for listed species,141 although the plans are largely immune to

131 Id. § 4332(C).

132 Id. § 4332(C)(i).

133 Id. § 4332(C). Agencies must consider appropriate alternatives even when not

required to prepare an EIS. Id. § 4332(E).

134 40 C.F.R. §§ 1501.3, 1501.4(a)(2), 1508.13 (2017).

135 See, e.g., ROBERT L. GLICKSMAN ET AL., ENVIRONMENTAL PROTECTION: LAW AND

POLICY 300 (8th ed. 2019).

136 See, e.g., WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1226

(10th Cir. 2017).

137 16 U.S.C. § 1531(b) (2012). In addition, Congress declared a policy “that all Federal

departments and agencies shall seek to conserve endangered species and threatened species

and shall utilize their authorities in furtherance” of the ESA’s purposes. Id. § 1531(c)(1).

138 The NMFS has jurisdiction over anadromous fish and ocean-based aquatic life, while

the FWS has jurisdiction over freshwater and land-based plants and animals. Jennifer Jeffers,

Note, Reversing the Trend Towards Species Extinction, or Merely Halting It? Incorporating

the Recovery Standard into ESA Section 7 Jeopardy Analyses, 35 ECOLOGY L.Q. 455, 457

n.3 (2008).

139 16 U.S.C. § 1533(a)(1), (b)(1). For the difference between endangered and threatened

species, see id. § 1532(6), (20).

140 Id. § 1533(a)(2), (b)(2). Critical habitat is defined at id. § 1532(5).

141 Id. § 1533(f).


judicial challenges.142 Other requirements are enforceable, however. Section 7

of the ESA imposes a duty on all federal agencies, in consultation with one of

the Services, to ensure that the actions they authorize, fund, or carry out will not

“jeopardize” the continued existence of listed species or adversely affect their

critical habitat.143 This mandate imposes strict procedural and substantive duties

on federal agencies.144 In addition, Section 9 of the ESA prohibits the taking of

endangered species by either government agencies or private landowners.145

The ESA authorizes any person to file a civil action in federal district court to

enjoin any person, including a federal agency, alleged to be in violation of the

statute or its implementing regulations.146

This study analyzes litigation under NEPA and the ESA between 2001 and

2016. On average, about 100 NEPA cases were filed in district court and about

twenty-five appeals were filed annually. To make the review process

manageable, we analyzed samples of about 500 district court and 330 circuit

court opinions with NEPA claims. The volume of cases was much smaller under

the ESA, however, with roughly thirty district court cases and about ten appeals

filed each year. Given these modest numbers, we coded the entire population of

ESA cases with dispositive opinions issued during this sixteen-year period.147

Under both statutes, the volume of cases litigated covers a very small

percent of the actions subject to each statute, which number in the tens of

thousands annually.148 The relatively small volume of litigation under the two

statutes suggests that, whether due to strategic considerations or limited

resources, plaintiffs are selective in the cases they file. The selectivity of the

cases filed is reflected in the success rates of environmental organizations,149

142 See, e.g., Friends of Blackwater v. Salazar, 691 F.3d 428, 429 (D.C. Cir. 2012); Fund

for Animals, Inc. v. Rice, 85 F.3d 535, 538 (11th Cir. 1996).

143 16 U.S.C. § 1536(a)(2) (2012).

144 Courts may enjoin actions on which the agencies should have consulted with the

Services but failed to do so, for example. See, e.g., California ex rel. Lockyer v. U.S. Dep’t

of Agric., 575 F.3d 999, 1005 (9th Cir. 2009); Nat. Res. Def. Council v. Houston, 146 F.3d

1118, 1123 (9th Cir. 1998).

145 16 U.S.C. § 1538(a)(1)(B). The Supreme Court deferred to the Interior Department’s

position that habitat modification may amount to a taking. Babbitt v. Sweet Home Chapter

of Cmtys. for a Great Or., 515 U.S. 687, 687–88 (1995).

146 16 U.S.C. § 1540(g)(1). A citizen suit, for example, may seek to compel one of the

Services to perform its nondiscretionary statutory duty to list a species or designate its critical

habitat. Id. § 1540(g)(1)(C).

147 The details of the empirical methods and protocols are the same as those described

in David E. Adelman & Robert L. Glicksman, Presidential and Judicial Politics in

Environmental Litigation, 50 ARIZ. ST. L.J. 3 app. at 64–67 (2018) [hereinafter Adelman &

Glicksman, Judicial Politics], except that we applied these methods to cases decided under

the ESA as well as NEPA for this Article.

148 David E. Adelman & Robert L. Glicksman, Reevaluating Environmental Citizen

Suits in Theory and Practice, 91 COLO. L. REV. 385, 385 (2020) [hereinafter Adelman &

Glicksman, Citizen Suits].

149 We divided plaintiffs into five broad classes: local environmental organizations;

national environmental organizations; other nongovernmental organizations; businesses and


which filed about three-quarters of the cases under NEPA and the ESA.150 The

success rates of environmental organizations under NEPA and the ESA were

higher than the averages for challenges to agency action in a wide range of

empirical studies,151 and they were far higher than during the Bush

Administration.152 The combination of careful selection of cases and the

geographic concentration of cases in liberal states suggests that local politics

were a significant factor in deciding where to file cases. Environmental

plaintiffs sought to ensure that their cases were both legally meritorious and, to

the extent possible, that they would not provoke a political backlash from local

communities.

A. Patterns of Litigation over Space and Time

The NEPA and ESA cases we analyzed were concentrated in the Ninth and

D.C. Circuits. Roughly half of them were filed in the Ninth Circuit and another

12−15% in the D.C Circuit. In district court, about 60% of the cases under each

business associations; and cities, counties, states, and tribes. We defined “national

environmental organizations” narrowly to include a small number of high-profile

environmental organizations (e.g., Sierra Club, Natural Resources Defense Council,

National Wildlife Federation, Center for Biological Diversity) to identify the organizations

that litigated a large share of the NEPA and ESA cases. While there was substantial overlap

between the organizations that dominated litigation under each statute, there were a few

organizations in each case that were unique to the specific statute.

150 Environmental plaintiffs, whether national or local organizations, were more

successful—prevailing, on average, at rates ten to twenty percentage points higher—than

other plaintiffs.

151 See Miles & Sunstein, Real World, supra note 5, at 767–68 (reporting data on

administrative review cases involving EPA indicating that agencies prevailed on average in

72% of administrative challenges on appeal); Richard J. Pierce, Jr., What Do the Studies of

Judicial Review of Agency Actions Mean?, 63 ADMIN. L. REV. 77, 84–85 (2011)

(synthesizing the results of numerous empirical studies of judicial review and finding that

agencies prevail in 64%–81% of the cases at the circuit level); Richard J. Pierce, Jr. & Joshua

Weiss, An Empirical Study of Judicial Review of Agency Interpretations of Agency Rules, 63

ADMIN. L. REV. 515, 515 (2011) (observing that “[c]ourts at all levels of the federal judiciary

uphold agency actions in about 70% of cases” irrespective of the standard of review that they

apply). A recent study finds that success rates in adjudicated cases in federal courts fell from

70% in 1985 to 30% in 2009. Alexandra D. Lahav & Peter Siegelman, The Curious Incident

of the Falling Win Rate: Individual vs System-Level Justification and the Rule of Law, 52

U.C. DAVIS L. REV. 1371, 1371 (2019). Thus, plaintiff success rates in ESA cases are similar

to the recent figures on success rates in civil cases generally in the federal courts.

152 The disparity in success rates between environmental and other plaintiffs was far

greater during the Bush than the Obama Administration. Specifically, during the Bush

Administration environmental organizations prevailed in 45% and other plaintiffs in just

20% of the cases; during the Obama Administration, they prevailed in 24% and 13%,

respectively, of the cases. On appeal during the Bush Administration, environmental

organizations prevailed in 35% of the cases and other plaintiffs prevailed in 16%, whereas

during the Obama Administration, the success rates converged to 17% and 15%,

respectively.


statute were filed in either the Ninth or Tenth Circuits and 15% were filed in the

D.C. Circuit (Figures 1–2). Moreover, the distribution of appeals largely

matches the district court filings.153 Within each circuit, the actions on which

NEPA and ESA cases originated were also overwhelmingly located in

politically centrist or Democratic states, or they spanned multiple states. Only

about 15% of the underlying actions originated in Republican states.154

153 Under NEPA, 52% of the appeals were in the Ninth Circuit, 10% in the D.C. Circuit,

12% in the Tenth Circuit, and 5.1% in the Sixth Circuit; under the ESA, 64% of the appeals

were in the Ninth Circuit, 15% in the D.C. Circuit, 7% in the Eleventh Circuit, and 5% in the

Tenth Circuit.

154 We used the index for citizen ideology developed by William D. Berry et al. See

William D. Berry et al., Measuring Citizen and Government Ideology in the American States,

1960–93, 42 AM. J. POL. SCI. 327, 327–48 (1998). See generally Richard C. Fording, State

Ideology Data, WORDPRESS (June 18, 2018), https://rcfording.wordpress.com/state-

ideology-data/ [https://perma.cc/FBT7-UCJ8]. The citizen ideology index was used to

categorize states into three categories: (1) Republican states (<45), (2) centrist states (45>

and <55), and (3) Democratic states (>55). The index for each state was averaged over the

years 2001–2016 to cover the period of the two studies.


Figure 1: NEPA District Court Cases by Circuit

Figure 2: ESA District Court Cases by Circuit

The pattern of litigation observed was not preordained by the geographic

distribution of the underlying actions. NEPA requires an EIS for any federal

action that has “significant” environmental impacts,155 and while one would

anticipate some geographic variation, there is no reason to expect that the cases

would be so disproportionately concentrated in these circuits, particularly given

155 42 U.S.C. § 4332(C) (2012).

51%

27%

12%

6.7%3.4%

Ninth Circuit Other Circuits D.C. Circuit

Tenth Circuit Sixth Circuit

Number of District Court Cases by Circuit 2001-2015

32676

73

2921

9th Circuit Other Circuits DC Circuit

11th Circuit 10th Circuit

ESA District Court Cases by Federal Circuit for 2001-16


population and development patterns nationally. Yet, EPA data reveal that

roughly 47% of the EISs, the most rigorous level of environmental review

engaged in by agencies, prepared from 2012 through 2016 involved actions that

were located in the Ninth Circuit.156 Similarly, under the ESA, while informal

consultations were evenly distributed across the country, with no circuit

containing more than about 15% of the consultations,157 60% of formal

consultations from 2008 through 2016 involved actions based in the Ninth

Circuit.158 Accordingly, we find that although the universe of actions subject to

the statutes is disbursed widely across the country, federal litigation was located

disproportionately in the Ninth Circuit.

The reasons for the uneven distribution of cases likely reflect a mix of

strategic and structural factors. In the case of the D.C. Circuit,159 the location of

most federal agencies in D.C. affords plaintiffs the option of selecting it as an

alternative venue in most cases; in essence, plaintiffs can use it as an option for

forum shopping.160 The large number of cases in the Ninth Circuit is driven, in

part, by the nature of the cases—most of which involve federal lands, which are

heavily concentrated in the states encompassed by the Ninth Circuit.161 Forum

shopping is also a potential factor for the Ninth Circuit, particularly given, as

discussed further below, that plaintiffs prevailed at higher rates in the Ninth

Circuit. This explanation has an inherent limit, however, because only about

20% of the NEPA and ESA cases in district court involved actions that spanned

more than one circuit.162 Thus, the number of cases in which forum shopping

could arise falls short of accounting for the number of cases in the Ninth Circuit.

Inter-circuit disparities in plaintiffs’ success rates could still operate as a

156 Adelman & Glicksman, Citizen Suits, supra note 148, at 408.

157 Id.

158 For the difference between informal and formal consultations, see 3 GEORGE C.

COGGINS & ROBERT L. GLICKSMAN, PUBLIC NATURAL RESOURCES LAW §§ 29:26–27 (2d ed.

2007). Informal consultation “is an optional process that includes all discussions,

correspondence, etc., between the Service and the Federal agency or the designated non-

Federal representative, designed to assist the Federal agency in determining whether formal

consultation or a conference is required.” 50 C.F.R. § 402.13(a) (2017). Formal consultation

is required if an agency determines that its action may affect listed species or critical habitat.

Id. § 402.14(a).

159 Under NEPA, the D.C. Circuit cases involved challenged activities that were located

in 11 circuits, with the highest number of cases originating from the Fourth Circuit (4), Sixth

Circuit (4), Tenth Circuit (5), and Eleventh Circuit (3).

160 See 28 U.S.C. § 1391(e)(1) (2012) (providing that a civil action in which a defendant

is the United States, a federal agency, or an official of such an agency may be brought in any

judicial district in which a defendant in the action resides).

161 Most federal land is located in western states, suggesting that one would expect cases

to be filed disproportionately in the Ninth and Tenth Circuits, which together encompass

99% of land managed by the Bureau of Land Management (BLM), 85% of U.S. Forest

Service (USFS) land, and 91% of land under the jurisdiction of the National Park Service

(NPS). See Adelman & Glicksman, Judicial Politics, supra note 147, at 31.

162 Just 12% of the NEPA cases and roughly 17% of the ESA cases spanned more than

one circuit.


deterrent to filing cases in other federal circuits. If this were a significant factor,

it could depress the number of cases outside the Ninth Circuit and contribute to

the skewed distribution of cases geographically.

The analysis that follows utilizes a variety of statistical methods to assess

the relative influence of local, executive, and judicial politics on case outcomes

and the geographic distribution of the cases. Starting with basic descriptive

statistics, we find substantial differences in outcomes between cases filed during

the Bush Administration and those filed during the Obama Administration.

Environmental plaintiffs in NEPA cases were about twice as likely to prevail in

district and appellate courts during the Bush Administration as during the

Obama Administration.163 The differences were smaller in the ESA cases,

though, with environmental plaintiffs about 50% more likely to prevail during

the Bush Administration at both the district and appellate court levels.164 In

absolute terms, the cross-administration differences were nineteen and fourteen

percentage points for NEPA and ESA cases, respectively.

Geographically, the Ninth Circuit was not only the center of activity, it was

also a favorable venue for plaintiffs. In the Ninth Circuit, environmental

plaintiffs prevailed at the district court level in NEPA and ESA cases at rates

ten to twenty-five percentage points higher than other circuits (collectively).165

The D.C. Circuit was a somewhat less favorable venue, with rates that were

about ten percentage points lower than those in the Ninth Circuit. On appeal, the

Ninth Circuit stood out during the Bush Administration, with environmental

plaintiffs advantaged in ESA and NEPA cases by fifteen and thirty percentage

points, respectively. However, while this advantage persisted for the ESA cases,

it largely disappeared for NEPA cases during the Obama Administration.166

These findings reveal that district judges in the Ninth Circuit were consistently

less deferential to agencies than their counterparts in other circuits, whereas

Ninth Circuit appellate judges were less deferential in ESA cases across both

163 Environmental plaintiffs won 42% of the district court NEPA cases during the Bush

Administration versus 23% of the district court cases during the Obama Administration; at

the appellate level, plaintiffs won 36% of the NEPA cases during the Bush Administration

versus 17% of the cases during the Obama Administration.

164 Under the ESA, plaintiffs won 47% of the district court ESA cases during the Bush

Administration versus 32% of the district court cases during the Obama Administration; at

the appellate level, plaintiffs won 34% of the ESA cases during the Bush Administration

versus 22% of the cases during the Obama Administration.

165 Under NEPA, environmental plaintiffs won 50% of the district court cases in the

Ninth Circuit, 42% in the D.C. Circuit, and 25% in other circuits during the Bush

Administration; these rates dropped to 28%, 21%, and 6%, respectively, during the Obama

Administration. Under the ESA, environmental plaintiffs won 52% of the district court cases

in the Ninth Circuit, 42% in the D.C. Circuit, and 29% in other circuits during the Bush

Administration; these rates dropped to 28%, 21%, and 6%, respectively, during the Obama

Administration.

166 Environmental plaintiffs in the Ninth Circuit during the Obama Administration

prevailed in 19% of the NEPA cases versus 14% in all other circuits collectively; for ESA

cases, plaintiff success rates were 27% and 11%, respectively.


administrations but in NEPA cases they were less deferential only during the

Bush Administration.

The influence of judicial ideology on case outcomes was more nuanced and

less pronounced than the impact of the circuit and presidential politics. At the

district court level, plaintiffs’ success rates were roughly fifteen percentage

points higher before Democratic-appointed judges than Republican-appointed

judges in cases filed during the Bush Administration;167 however, the

differential dropped to about ten percentage points during the Obama

Administration and was no longer statistically significant.168 This result

suggests that the influence of judicial ideology declined with the shift in

presidential politics—it was statistically significant when the conservative

ideology of the Bush Administration conflicted with the liberal statutory

mandates of NEPA and the ESA but was neutralized when the priorities of the

Obama Administration were largely in alignment with those of the statutes.

At the appellate level, the influence of judicial ideology was complicated

by the permutations of three-judge panels. Consistent with studies discussed

above,169 we observed the greatest differences in case outcomes between the

two administrations when panels were ideologically uniform, either all

Republican or all Democratic appointees, whereas ideologically mixed panels

tended to moderate plaintiffs’ success rates.170 During the Bush Administration,

environmental plaintiffs prevailed before all-Democratic panels at rates that

were about fifty percentage points above those before all-Republican panels.171

However, the impact of judicial ideology diminished during the Obama

Administration, with plaintiffs’ success rates in NEPA and ESA cases dropping

overall and disparities across panels with different ideological mixes generally

declining to ten to fifteen percentage points.172 While we cannot know whether

167 For the NEPA cases, plaintiffs prevailed before Republican and Democratic judges

in 31% and 44% of the cases (p-value of 0.046), respectively; for ESA cases, plaintiffs

prevailed before Republican and Democratic judges in 33% and 51% of the cases (p-value

of 0.003), respectively.

168 For the NEPA cases, plaintiffs prevailed before Republican and Democratic judges

in 16% and 23% of the cases (p-value 0.265), respectively; for ESA cases, plaintiffs

prevailed before Republican and Democratic judges in 27% and 39% of the cases (p-value

of 0.071), respectively.

169 See supra Part II.A.

170 The one exception was NEPA cases with majority-Democratic panels during the

Bush Administration, before which plaintiffs prevailed at modestly higher rates than all-

Democratic panels (53% versus 47%, respectively).

171 For the NEPA appeals during the Bush Administration, plaintiffs prevailed 0% of the

time before an all-Republican panel versus 48% before all-Democratic panels; for ESA

appeals, plaintiffs prevailed 20% of the time before an all-Republican panel versus 73%

before all-Democratic panels. The p-values were all below 5% with the exception of ESA

cases during the Obama Administration.

172 The one exception was plaintiff success rates before all-Democratic panels in NEPA

cases, which remained static around 50%. By contrast, while the rate for all-Democratic

panels in ESA cases remained relatively high, it fell by more than half and was not

statistically significant.


the long-term baselines for plaintiffs’ success rates under either statute are closer

to the level observed during the Bush or Obama Administrations,173 the

observed declines in the influence of judicial ideology on politically uniform

panels is striking.

We believe that the interplay we observe between judicial and presidential

politics is likely generalizable to statutes that reflect conservative values (e.g.,

immigration, regulatory reform, school choice); however, for such conservative

statutes, the influence of ideology on judicial review would decline during

Republican administrations. We find evidence for this in the trends we observe

across the two administrations. Specifically, the pattern for the influence of

judicial ideology is inverted for cases filed by plaintiffs other than

environmental organizations and it is Republican judges who favor them. In

most of these cases, the plaintiffs are private entities (often landowners) or local

governments seeking to weaken or avoid regulations under the ESA. Although

the number of cases is much smaller (thirty-six appellate cases), the success rate

of non-environmental plaintiffs before Republican-majority appellate panels

doubled between the Bush and Obama administrations, from 23% to 44%,

whereas it was essentially flat before Democratic-majority panels.174 A similar

pattern is observed in the district court cases, with non-environmental plaintiffs

prevailing at double the rate before Republican judges during the Obama

Administration (24% versus 48%), while their success before Democratic

judges remained the same. The small number of cases, particularly at the

appellate level, limits the inferences that we can draw from the data, but these

findings are nevertheless consistent with either conservative or liberal

presidential politics impacting the degree to which ideology is a significant

factor during judicial review of agency action.

B. The Relative Importance of Institutional and Political Factors

We conducted multiple regressions using the district and appellate court

data.175 Table 1 below displays the results from four logistic regressions using

173 At least one earlier study suggests that the average is closer to rates observed during

the Obama Administration. Robert W. Malmsheimer et al., National Forest Litigation in the

US Courts of Appeals, 102 J. FORESTRY 20, 22 (2004) (finding that the USFS prevailed in

64% of the ESA cases during the George H.W. Bush Administration and 80% of the cases

during the first Clinton Administration).

174 During the Bush Administration, non-environmental plaintiffs won three out of

thirteen cases before majority-Republican panels versus zero of five before majority-

Democratic panels; during the Obama Administration, non-environmental plaintiffs won

four out of nine cases before majority-Republican panels versus one of eight before majority-

Democratic panels.

175 Because the dependent variable—whether the plaintiff prevailed on at least one of its

claims—was categorical, logistic regression was used in place of conventional ordinary-

least-squares regression. ALAN C. ACOCK, A GENTLE INTRODUCTION TO STATA 302–04 (rev.

3d ed. 2012). This type of regression generates a “likelihood” or “odds” ratio, which in our

analysis is simply the ratio of the likelihood of a plaintiff prevailing when the value of the


two variations on parameters for each statute to assess the influence of key

variables relative to each other. The dependent variable in each regression is

case outcome, where success was defined as a plaintiff prevailing on at least one

of either the NEPA or ESA claims. Likelihood ratios for plaintiff success rates

appear above the z-values,176 which are in brackets, and the asterisks indicate

the degree of statistical significance for each parameter. We conducted

regressions with interaction terms to test whether the variables operated

independently. None of the interaction terms were found to be statistically

significant.

1. The Principal Predictors of Case Outcomes

The results in Table 1 confirm that the Ninth Circuit,177 judicial ideology,

and class of plaintiff, specifically environmental organizations, have a

statistically significant impact on the outcomes of ESA and NEPA cases in

district court.178 Plaintiffs were 1.7–1.8 times more likely to succeed in an ESA

or NEPA case before a Democratic judge than a Republican judge; they were

roughly 1.7–2.5 times more likely to succeed in the Ninth Circuit; and plaintiffs

were 1.5–2.5 times more likely to prevail if they were a national environmental

organization.179 The statistical significance of the circuit variable implies that

inter-circuit differences cannot be reduced to the ideology of judges. Structural

features of the circuits must also be factors, particularly the balance of

Republican and Democratic district court judges in the circuit, and whether the

applicable dummy variable is “one” over the likelihood when it is “zero.” Id. For example,

the dummy variable for presidential administration in our analysis designates the Bush

Administration as “0” and the Obama Administration as “1.” Accordingly, the likelihood

ratio is the odds of a plaintiff winning its case during the Obama Administration over the

odds of a plaintiff prevailing during the Bush Administration. In this case, a likelihood ratio

of “0.5” implies that a plaintiff has a 50 percent lower chance of winning an ESA suit during

the Obama Administration than during the Bush Administration; conversely, a likelihood

ratio of “1.5” implies that a plaintiff has a 50% greater chance of prevailing during the

Obama Administration.

176 A “z-value” is a complementary measure of statistical significance that indicates the

number of standard deviations the observed data deviate from the value predicted by the

statistical model. Z-Score: Definition, Formula and Calculation, STATISTICS HOW TO,

https://www.statisticshowto.datasciencecentral.com/probability-and-statistics/z-score

[https://perma.cc/76M8-975A].

177 The statistical significance of the coefficient for the D.C. Circuit may have been

limited by statistical power. Only sixty cases were filed in the D.C. Circuit, which, while

large relative to most circuits, was small for purposes of statistical power—for our data, the

statistical power was less than sixty for any sample with fewer than ninety-four cases.

178 The dummy variable, designating whether or not a case was published, was included

as a control variable.

179 The success rates of environmental plaintiffs diverged somewhat across

administrations—national environmental organizations had higher success rates than local

ones (53% versus 40% percent, respectively) during the Bush Administration, but they

converged during the Obama Administration (25% and 21%, respectively).


politics of “Republican” and “Democratic” judges differ across circuits (i.e., a

Republican judge in the Ninth Circuit may not be as conservative as one in the

Fifth Circuit). For NEPA cases alone, environmental plaintiffs were about 2.7

times more likely to prevail during the Bush administration and two times more

likely to prevail if they were a local environmental organization. Other potential

factors, such as the identity of the defendant federal agency, were also evaluated

but found not to be statistically significant.

The regressions for the appellate cases appear in Table 2 below.180 The

dependent variable in each regression is again case outcome, with success

defined as a plaintiff prevailing on at least one of its NEPA or ESA claims. The

other statistics in Table 2 mirror those of Table 1 apart from judicial ideology,

which treats the four ideological combinations of three judges separately using

panels with two Republican judges and one Democratic judge as the baseline

against which the other panels were measured. An ideologically mixed panel

was chosen as the baseline on the premise that it reflects a relatively neutral

position ideologically. With regard to other ESA and NEPA claims, the smaller

sample sizes of our appellate databases and the low rates at which most claims

were raised limited the statistical power of our analysis.

Table 1: Logistic Regression for District Court Case Outcomes NEPA NEPA ESA ESA

Ruling Ruling Ruling Ruling

Administration 0.374*** 0.362*** 0.786 0.788

(-4.34) (-4.53) (-1.25) (-1.24)

Appointing 1.809** 1.851** 1.760** 1.776**

President’s (2.64) (2.76) (2.91) (2.98)

Party for Judge

DC Circuit 1.620 1.757 0.613 0.615

(1.26) (1.49) (-1.43) (-1.43)

Ninth Circuit 2.607*** 2.468*** 1.728* 1.745*

(3.51) (3.37) (2.33) (2.38)

National 2.476** 2.539** 1.580 1.481*

Environmental (2.93) (3.02) (1.78) (2.04)

Organization

180 We conducted multiple regressions on specific claims under the ESA and NEPA;

only a single claim under NEPA, whether an agency took a “hard look” at the environmental

impacts of a federal action, was statistically significant. However, judges may have used the

hard look review in a generic manner that raises questions of endogeneity—in other words,

judges convinced on independent technical grounds that the agency’s analysis was adequate

often ended their opinion by concluding that the agency had undertaken the required hard

look.


Local 1.945* 1.972* 1.106

Environmental (2.36) (2.42) (0.38)

Organization

ESA

Listing

2.486** 2.474**

Petition (3.00) (2.99)

Case Published 1.375 1.766** 1.765**

(1.35) (2.82) (2.81)

N 462 462 521 521

Exponentiated coefficients; z statistics in parentheses; * p < 0.05, ** p < 0.01, *** p < 0.001

The regression coefficients in Table 2 are roughly consistent across the ESA

and NEPA cases for the presidential administration, whether the defendant

(typically the government) was an appellee, and all-Democratic appellate

panels.181 On average, plaintiffs were about twice as likely to prevail during the

Bush Administration, and they were two to four times more likely to prevail in

cases before all-Democratic panels than panels with two Republican judges and

one Democratic judge. The identity of the appellee, whether it was a defendant

or plaintiff, was also a significant factor despite the small number of appeals

initiated by defendants (fewer than twenty-five cases under either statute);

defendants were about four times more likely to prevail on appeal than plaintiffs.

For the NEPA cases, the Ninth Circuit and environmental plaintiffs were each

statistically significant factors. Plaintiffs were roughly 2.5 times more likely to

win in the Ninth Circuit, and environmental plaintiffs were about two times

more likely to prevail than other classes of plaintiffs.

Table 2: Logistic Regression for Appeals Outcome NEPA NEPA ESA ESA

Ruling Ruling Ruling Ruling

Other Circuits- 2.294** 2.757*** 0.751 0.740

Ninth Circuit (2.43) (3.25) (-0.63) (-0.67)

Administration182 0.537** 0.572* 0.462* 0.500*

181 While the statistical significance is weaker under the ESA, this is likely due to the

smaller number of cases. Given that our sample of NEPA cases includes over 340 cases and

is almost equally divided between the Bush and Obama Administrations, statistical power is

unlikely to be a problem.

182 The time lag associated with appeals makes it more difficult to define when one

administration stops and another begins. We experimented with different cutoff dates, but

the results did not vary significantly. As a consequence, we adopted a “middle of the road”

approach that defines the Bush Administration as encompassing all circuit cases filed


(-2.06) (-1.89) (-1.85) (-1.70)

Case 2.646** 2.611** 1.243 1.269

Published183 (2.56) (2.56) (0.37) (0.41)

Hard Look 0.448** 0.442**

(-2.33) (-2.43)

Appellee 0.219*** 0.223*** 0.218*** 0.257**

(-2.81) (-2.94) (-2.78) (-2.54)

Environmental 2.094** 2.032** 1.905

Organization (2.21) (2.17) (1.51)

Circuit Panel 0.770 1.483 1.408

3-Reps (-0.43) (0.58) (0.51)

Circuit Panel 1.291 1.334 1.363

1-Rep/2-Dems (0.70) (0.37) (0.40)

Circuit Panel 2.247* 4.157* 4.146**

3-Dems (1.86) (1.94) (1.97)

N 330 334 158 158

Exponentiated coefficients; z statistics in parentheses; * p < 0.10, ** p < 0.05, *** p < 0.01

2. Presidential Politics and Plaintiff Success Rates

The results of the regressions for the appellate cases differ both across the

two statutes and with those for district courts. Case outcomes under both statutes

were influenced by the presidential administration, which was associated with a

decrease in success rates of about twenty percentage points between the Bush

and Obama Administrations. This result could be driven by multiple factors,

including changes in the cases plaintiffs filed or the policies of the presidential

between 2002 and 2009, and the Obama Administration as encompassing all cases filed

between 2010 and 2015.

183 Whether the case was published is a control variable, but it does not change the

results significantly if it is excluded. The principal impact is on the Ninth Circuit variable

for NEPA cases, which falls below statistical significance if publication is removed. The

coefficients for other independent variables change only modestly.


administration. Given the Bush Administration’s deregulatory bias,184 a

plausible explanation is that the Bush Administration’s compliance with the

statutes was weak and that this caused appellate judges to rule in favor of

plaintiffs more often—correcting instances in which district court judges were

overly deferential. It is notable that plaintiffs’ success rate on appeal was not

affected by their high success rates in district court (and the resulting smaller

pool of cases) during the Bush Administration—they won at higher rates in both

district and appellate court. Thus, even though district court judges ruled in

favor of plaintiffs at greater rates, the pool of cases for appeal was, on average,

stronger during the Bush Administration than during the Obama Administration.

While we cannot definitively distinguish between the potential factors at work,

we believe that the high success rates of plaintiffs in district court and on appeal

suggests strongly that administration policies and implementation were central

factors.

Our reasoning turns on the inference that plaintiffs were not more selective

in the cases they appealed during the Bush Administration, which is premised

on three observations. First, the number of appeals filed annually was

comparable during the two administrations, despite plaintiffs’ success rate in

district court during the Bush Administration being higher than it was during

the Obama Administration. Second, the threshold for choosing a case to appeal

was quite high (only about a quarter of NEPA and a third of ESA cases were

appealed), which substantially narrowed the range of cases.185 This selectivity

would tend to diminish the differences observed in appellate outcomes across

administrations assuming plaintiffs were effective in selecting cases with a

184 See, e.g., Jack M. Beermann, Midnight Rules: A Reform Agenda, 2 MICH. J. ENVTL.

& ADMIN. L. 285, 329 (2013) (“In general, the GW Bush administration’s midnight

regulations reflected what one would expect based on the policies of the administration,

deregulating in the environmental area and regulating labor unions and abortion providers

more strictly.”); Daniel A. Farber, Rethinking the Role of Cost-Benefit Analysis, 76 U. CHI.

L. REV. 1355, 1363 (2009) (“To the chagrin of public interest groups and the joy of industry-

funded think tanks, OIRA greatly stemmed the flow of health, safety and environmental

regulation during the Bush Administration.”); Max R. Sarinsky, Discount Double-Check: An

Analysis of the Discount Rate for Calculating the Social Cost of Carbon, 19 N.Y.U. J. LEGIS.

& PUB. POL’Y 215, 243 (2016) (discussing “attempts by the George W. Bush administration

to weaken environmental regulation based on politically motivated intervention in cost-

benefit analysis”).

185 In essence, the more selective plaintiffs are in determining which cases to appeal, the

narrower the range will be with regard to the strength of their claims. Their efficacy in this

respect will depend on how proficient plaintiffs are at selecting stronger cases—and focused

on this as a criterion. See, e.g., Theodore Eisenberg, Testing the Selection Effect: A New

Theoretical Framework with Empirical Tests, 19 J. LEGAL STUD. 337, 337–38 (1990)

[hereinafter Eisenberg, Selection Effect]; Theodore Eisenberg & Henry S. Farber, Why Do

Plaintiffs Lose Appeals? Biased Trial Courts, Litigious Losers, or Low Trial Win Rates?, 15

AM. L. & ECON. REV. 73, 105 (2013); John M. de Figueiredo, Strategic Plaintiffs and

Ideological Judges in Telecommunications Litigation, 21 J. L. ECON. & ORG. 501, 503–04

(2005).


higher likelihood of winning.186 Third, if selection criteria did vary, one would

expect environmental plaintiffs to be less selective—that is more aggressive—

during the Bush Administration. But, contrary to our results, such a strategy

would lead to lower, rather than higher, success rates in court. The higher

success rates of plaintiffs during the Bush Administration therefore appear more

likely to be attributable to shifts in administration policies and implementation

rather than the litigation strategies of environmental plaintiffs.

3. Appellate Panels Effects and Circuit Structure

The other major factor that was common to both statutes was judicial

ideology, but its impacts were statistically significant only for all-Democratic

panels. As noted above, the role of ideology on three-judge panels is mediated

by the strong norm of unanimity that exists among circuit judges.187 This norm

reduces the influence of judicial ideology on mixed panels, which predominate

in circuits with relatively balanced numbers of judges based on political

affiliation. This theory is consistent with the small, statistically insignificant

differences we observe in the coefficients for ideologically mixed panels.188

Unlike prior studies, however, we find that the coefficient for panels with all-

Republican judges did not differ meaningfully from the ideologically mixed

panels, whereas the coefficients for all-Democratic panels were higher by a

factor of two to four.189 This asymmetry is the opposite of what Revesz observed

in his study of D.C. Circuit cases, where he found that all-Republican panels

were the most extreme ideologically.190 For the third common factor, whether

186 Eisenberg, Selection Effect, supra note 185, at 338 n.3 (affirming the importance of

selection effects on appeal).

187 This norm is clearly evident in our sample data: dissents were filed in just 5.5% of

the cases. See Sean Farhang & Gregory Wawro, Institutional Dynamics on the U.S. Court of

Appeals: Minority Representation under Panel Decision Making, 20 J.L. ECON. & ORG. 299,

307 (2004) (observing that the norm of consensus among appellate judges stems from “a

view among judges that unanimous court opinions promote the appearance of legal

objectivity, certainty, and neutrality, which fosters courts’ institutional legitimacy”); see also

Renee Cohn Jubelirer, Communicating Disagreement Behind the Bench: The Importance of

Rules and Norms of an Appellate Court, 82 L. & CONTEMP. PROBS. 103, 105–06 (2019)

(contrasting collegial deliberative and adversarial collaborative processes of judicial

decision-making).

188 The baseline for the regression is a panel with two Republican-appointed judges and

one Democratic. The results in Table 2 show that the increase in plaintiff success rate above

this baseline for a panel with two Democratic-appointed judges and one Republican is less

than 30% and that it is not statistically significant.

189 See supra Table 2. Statistical power was likely a factor for the NEPA cases, given

the small number of appeals with all-Republican panels. Because of the adverse

combinatorics, uniform panels were relatively rare in our sample, representing thirty-seven

and fifty-two cases for the all Republican-appointed and all Democratic-appointed panels,

respectively.

190 See Revesz, Ideology, supra note 13, at 1754 tbl.11. While the coefficient in supra

Table 2 regression is not statistically significant at the 5% level, a much larger study would


the government was an appellee, the small number of defendant-initiated

appeals limits what we can infer—beyond that appellate judges appear to be

especially deferential to government agencies when they initiate an appeal.

The results for NEPA cases exhibit two additional statistically significant

factors at the appellate level—whether the case was filed in the Ninth Circuit

and whether the plaintiff was an environmental organization. The persistence of

circuit effects for appeals of NEPA cases is likely attributable, in part, to the

large share (more than 50%) of the cases in the Ninth Circuit, which is important

because the number of cases heard by ideologically uniform three-judge panels

scales nonlinearly with the number of cases in a circuit.191 In the Ninth Circuit,

this effect was reinforced by the roughly 60%–40% split between Republican

and Democratic circuit judges.192 Accordingly, 65% of the NEPA appeals

nationally were decided by majority-Democratic panels, and 83% of those with

all-Democratic panels were Ninth Circuit cases.193 Thus, rudimentary statistics

effectively amplified the disparity in NEPA case outcomes between the Ninth

Circuit and other circuits collectively. The second factor, the equal or higher

success rates of environmental plaintiffs on appeal, underscores the relative

merits of their claims, as they prevailed at higher rates than other plaintiffs

before both Democratic and Republican judges.

It is notable that the Ninth Circuit is a favorable venue for ESA cases at the

district court level but not on appeal.194 This could simply be a matter of

selection effects and the smaller number of ESA cases relative to those filed

under NEPA. Since so few ESA cases were appealed, the high threshold for

pursuing an appeal may have dampened any cross-circuit differences. The

relatively small number of cases may also have resulted in somewhat

idiosyncratic distributions of cases. For example, the principal difference

between the two statutes appears to be with panels having two Democratic

have to be conducted to achieve the necessary statistical power given that fifteen years of

data produced just fifty-two cases with all Democratic-appointed panels. However, the

sample size, which represents roughly two-thirds of the 2001–2016 appeals, gives us

sufficient confidence to treat the coefficient as meaningful and not a statistical fluke.

191 See supra Figure 1. By contrast, the small number of ESA cases heard in most circuits

(typically less than one case per year) reduces the probability of having more than a couple

of ideologically uniform panels to essentially zero.

192 In our full sample, 49% of the judges were appointed by Democratic presidents and

51% were appointed by Republican presidents. The split in the D.C. Circuit was close to the

national average—47% versus 53% for Democrat- and Republican-appointed judges,

respectively; however, the split in the Tenth Circuit was 41% versus 59% for Democrat- and

Republican-appointed judges, respectively.

193 Similarly, within the Ninth Circuit, 73% of the ESA appeals were heard by majority

Democrat-appointee panels and 25% were heard by all Democrat-appointee panels (roughly

double the rate, on average, if there were equal numbers of Democratic- and Republican-

appointed judges). By contrast, only a single appeal was heard by an all Democratic-

appointed panel in the D.C., Tenth, or Sixth Circuits, which were the only other circuits with

more than fifteen cases in our sample.

194 See supra Tables 1 & 2.


judges and one Republican judge, which for ESA cases in the Ninth Circuit

ruled against plaintiffs at a rate higher than panels on which Republicans were

in the majority.195 Two factors may be at play here: (1) a disproportionate share

of the Republican-majority panels heard cases during the Bush Administration,

which could raise plaintiffs’ success rates in relative terms; and (2) while

majority-Democratic panels were evenly distributed over time, panels with two

Democrats were highly deferential to the Obama Administration, which

prevailed in 94% of the cases. This speculative analysis illustrates the inherent

indeterminacies created by the interplay of case selection effects, judicial

panels, and the volume of cases. Resolving these effects is not always feasible;

instead, the clearest inferences we can draw center on the relative importance of

the statistically significant factors found in the regressions.

4. Judicial Ideology and Case Outcomes

The regression results make it clear that judicial ideology is not a

predominant factor in case outcomes; while it is consistently a factor, the

administration, the Ninth Circuit, and the class of plaintiff are often of

comparable or substantially greater importance. In the district courts, we find

that the influence of judicial politics, the Ninth Circuit, and the plaintiff are

comparable for ESA cases and that the Ninth Circuit, presidential

administration, and plaintiff have significantly greater influence than judicial

ideology for NEPA cases.196 On appeal, judicial ideology is a significant factor

only for all-Democratic panels, which account for a small proportion of the

cases under either statute.197 For NEPA appeals, the ideological influence of all-

Democratic panels is comparable to the influence of the administration, the

Ninth Circuit, and the plaintiff.198 By contrast, the influence of ideology on all-

Democratic panels in ESA cases was roughly double that of the presidential

administration, which was the only other statistically and practically significant

factor.199 Accordingly, judicial ideology is one of several factors in district court

and, while still significant and even dominant in magnitude on appeal, its

influence is discernable in a relatively small number of cases. Overall, judicial

ideology is observed to impact more district court than appellate cases, but its

influence is substantially smaller, on average, than in the subset of appeals with

ideologically uniform panels.

More concretely, if we assume that the “ideologically neutral” rate for

overturning agency decisions during the study period was midway between the

rates observed for Democratic and Republican district court judges, roughly ten

195 By contrast, in the NEPA cases, such panels in the Ninth Circuit decided in favor of

plaintiffs at rates just slightly lower than all-Democratic panels, whereas such panels in other

circuits ruled at rates that were comparable to those of Republican-majority panels.

196 See supra Table 1.


198 See id.

199 See id.


NEPA and four ESA cases were wrongly decided annually, with the cases

evenly divided between those overly deferential and those second guessing the

agency. At the appellate level, the numbers would be about two and one

annually for NEPA and ESA appeals, respectively, assuming that the

ideologically mixed panels represent the ideologically neutral position. These

estimates lead to “departure rates” from nominally neutral adjudication of 10%–

13% in district court cases and 3%–5% on appeal. These departure rates are

useful proxies for estimating the number of cases that were decided on

ideological grounds rather than on an admittedly idealized, neutral, or balanced

legal basis. Whether expressed in absolute or relative terms, the departures from

neutrality are modest, particularly given the imprecision of the statutory

provisions and applicable legal doctrines on judicial review. Moreover, many of

the ESA and all of the NEPA cases involved procedural issues for which judicial

deference is likely to be low and thus the potential for ideological distortions

would be higher than the average administrative review cases.200 The final

section explores potential explanations for the trends we observe and assesses

their practical and normative implications.

IV. INSTITUTIONAL MECHANISMS THAT MEDIATE POLITICS IN THE

FEDERAL JUDICIAL SYSTEM

The study results show that the influence of judicial ideology on case

outcomes is mediated by two principal factors in addition to randomized

selection of judges. The structure of circuits impacts the volume of cases in each

circuit, which at the district court level can alter the balance of Republican and

Democratic judges that hear cases and at the appellate level can affect the

number of ideologically uniform panels. Presidential policies create alignments

and misalignments between judicial ideology, statutory mandates, and the

executive branch, which cause the politics of judges to figure more or less

prominently in legal opinions.201 We believe that identifying the conditions that

moderate or exacerbate the influence of judicial ideology is critical to the

legitimacy of judicial review. Our analysis of the NEPA and ESA cases

indicates that concerns about judicial ideology at the district and appellate court

levels tend to be overstated and that the escalating battles over judicial

appointments appear to be out of step with reality. In most circumstances,

judicial ideology plays a secondary role. Outside the Supreme Court, where a

single appointment has the potential to flip the ideological balance of the Court,

the politicization of judicial appointments has had limited effect.202 If a single

President is able to fill an unusually high number of lower court vacancies, as


201 Id. at 1735.

202 U.S. COURTS, JUDGESHIP APPOINTMENTS BY PRESIDENT (2019), https://www.us

courts.gov/judges-judgeships/authorized-judgeships/judgeship-appointments-president

[https://perma.cc/97ZD-FK9H]. All presidents’ appointments are spread across the

thirteen courts of appeals.


President Trump has been able to do during the first three years of his

presidency, politicization becomes more of a threat. Understanding the

institutional mechanisms that mediate the influence of judicial ideology and

their vulnerabilities to being undermined or overridden is of critical importance

to integrity of the legal system.

Our central finding is that presidential politics, the class of plaintiff, and the

filing of a case in the Ninth Circuit frequently have a greater impact on case

outcomes than judicial ideology. While we cannot definitively determine the

reasons each of these factors affects case outcomes, we identify the most likely

explanations. In the case of environmental plaintiffs, Republican judges are

unlikely to be particularly sympathetic to their claims, and yet environmental

groups prevail at higher rates before judges of either political affiliation.203 We

suggest that careful case selection, driven by resource constraints, is the most

likely reason for these groups’ higher success rates, which is consistent with the

low frequency of litigation relative to the number of federal actions that could

be challenged. Similarly, the higher success rates of environmental plaintiffs

during the Bush Administration is most likely attributable to weaker agency

compliance with the statutes, as opposed to greater selectivity in challenging

agency actions or less aggressive litigation tactics. By contrast, the unique status

of the Ninth Circuit is driven by circumstantial and structural factors—the high

volume of cases, the balance of Republican and Democratic judges, and

systemic differences in the politics of Republican and Democratic judges across

circuits. Importantly, while the high threshold that must be cleared before

environmental plaintiffs are willing to sue likely diminishes the potential

influence of judicial ideology, the divergent policies of the two administrations

and the large volume of cases in the Ninth Circuit provide statistical variance

and power, respectively, that make it easier to discern the effects of the

mediating institutional mechanisms in the federal judicial system.

This part of the Article incorporates and expands upon the literature on the

impact that judges’ politics have on judicial review. Most importantly, we

consider institutional mechanisms that mediate the influence of judicial

ideology beyond randomly selected three-judge appellate panels. While our

empirical results for appellate cases are consistent with prior studies of judicial

ideology, the mediating impact of circuit geography and the degree of alignment

between presidential policies and statutory objectives also play an important

role in mediating the influence of judicial ideology. Our study of district court

cases also extends the existing studies, which have focused almost exclusively

on the appellate courts. We begin with a discussion of how the different

dynamics of trial and appellate court litigation reduce the impact of judicial

ideology in the district courts. We then turn to evaluating the capacity of judicial

review to moderate the influence of presidential politics by invalidating agency

decisions in tension with statutory goals, and to the manner in which geographic



and ideological inter-circuit differences drive case outcomes. The final section

focuses on the normative and practical implications of our findings.

A. Institutional Constraints on the Influence of Judicial Ideology

The structural differences and hierarchical relationship between district and

appellate courts each impacts the influence of judicial ideology on case

outcomes. Most importantly, district court cases are not subject to the mediating

effect of three-judge panels.204 Reliance on a single judge results in judicial

ideology being a persistent factor in district court opinions, but its influence

appears to be tempered by the low political salience of most cases.205 District

court cases, due to the heightened selectivity of appeals, are typically lower

stakes and raise legal issues that are less contentious or problematic than the

average case that is appealed.206 These characteristics make it less likely that

judges’ ideological perspectives will become a significant factor, and this

generalization is likely to be especially true for the highly technical issues often

raised in NEPA and ESA cases. We observe this tempering effect in the modest

influence judicial ideology has on case outcomes—about a fifteen percentage-

point difference between Republican and Democratic district court judges

across both administrations.207 The influence of judicial ideology in district

court opinions is further moderated by the potential for an appellate court to

overturn district court opinions. This can occur directly, through actual appeals,

or indirectly, through precedential opinions or the threat of an appeal. Moreover,

the threat of a reversal on appeal is significantly greater for a district court

decision than for a court of appeals case due to the small and dwindling number

of cases that the Supreme Court agrees to review each year.208 Thus, the

consistent but modest influence of judicial ideology we observe in district court

opinions has several institutional origins.

The influence of judicial ideology in appellate courts, as we have seen, has

greater variance, but this variability is driven by a small subset of cases.

Accordingly, while judicial ideology can lead to strikingly large disparities in

the rates (often more than forty percentage points) at which plaintiffs prevail

before ideologically uniform panels with opposing political affiliations, the

actual number of cases implicated relative to the total appealed annually is quite

204 See Fischman, Voting Patterns, supra note 13, at 820–21.


206 Carney, supra note 122 (“Appeals courts, in particular, are a top priority for

McConnell because the circuit courts hear thousands of cases every year—compared to the

Supreme Court, which heard 69 cases during their last term—and often have the final say

for states within their jurisdiction.”).


208 See Kenneth W. Moffett et al., The Supreme Court Is Taking Far Fewer Cases than

Usual. Here’s Why., WASH. POST (June 2, 2016), https://www.washingtonpost.com/

news/monkey-cage/wp/2016/06/02/the-supreme-court-is-taking-far-fewer-cases-than

-usual-heres-why/ [https://perma.cc/H87G-NK5D].


small. This pattern is observed throughout the literature209 and follows from the

institutional mechanism that drives it—the system of randomized selection of

three-judge appellate panels. Simple combinatorics strictly bounds the number

of ideologically uniform panels based on the numbers of Republican and

Democratic judges in a circuit. The strong norm of unanimity among appellate

judges, along with the relative infrequency of ideologically uniform panels,

moderates the overall influence of ideology by tempering its influence on

ideologically mixed panels and limiting the instances in which it is relatively

unconstrained to a small subset of cases. We estimate that the departure rate

from a nominally neutral position is roughly 5% and that, in absolute terms, this

corresponds to fewer than a handful of appellate opinions annually being

ideological outliers.210

These constraints are contingent on there being a fair balance of Republican

and Democratic appellate judges. A large shift in the number of judges

appointed by one political party could disrupt this dynamic by shifting the

balance dramatically towards judges with views that align strongly with

Democratic or Republican politics. Conservative scholars, for example, have

urged Congress to double or triple the number of federal appeals court and

district court judges with the explicit goal of “undoing the judicial legacy of

President Barack Obama.”211 Such a plan would dramatically increase the

number of ideologically uniform panels if all or most of the vacancies were

filled by the same president and passing a strong ideological litmus test were a

precondition to being appointed.

Barring such an effort, it is difficult to view modest departure rates from

neutrality referred to above as posing a significant threat to the legitimacy of the

federal court system. Given the indeterminacies of legal analysis and the

imprecision of most statutory regimes, such deviations appear relatively benign.

Some might argue that the relative differences in case outcomes are nevertheless

troubling or, perhaps, that they are more important than the small absolute

numbers would suggest. We recognize that the characterization of the observed

209 See, e.g., Revesz, Ideology, supra note 13, at 1771–72.

210 “Departure rate” is used loosely here to indicate the percentage of cases in which

plaintiffs prevailed above what would be projected if plaintiffs’ success rates before

ideologically uniform panels were the same as those before ideologically mixed panels.

211 Richard Primus, Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis

of the Calabresi-Hirji Judgeship Proposal, HARV. L. REV. BLOG (Nov. 24, 2017),

https://blog.harvardlawreview.org/rulebooks-playgrounds-and-endgames-a-constitutional

-analysis-of-the-calabresi-hirji-judgeship-proposal/ [https://perma.cc/Z9R4-N48S]; see

also STEVEN G. CALABRESI & SHAMS HIRJI, PROPOSED JUDGESHIP BILL 1 (2017),

https://archive.thinkprogress.org/uploads/2017/11/calabresi -court-packing-memo.pdf

[https://perma.cc/Y8PX-FU58]; Steven G. Calabresi, Republicans Should Expand the

Federal Courts, NAT’L REV. (Nov. 15, 2017), https://www.nationalreview.com/2017/11/

gop-tax-bill-should-expand-federal-courts/ [https://perma.cc/LYG5-ZWNM]; Linda

Greenhouse, Opinion, A Conservative Plan to Weaponize the Federal Courts, N.Y. TIMES

(Nov. 23, 2017), https://www.nytimes.com/2017/11/23/opinion/conservatives-weaponize-

federal-courts.html [https://perma.cc/YBH6-772A].


trends in absolute or relative terms shapes how we view them. Pragmatically,

we have emphasized the practical limits of judicial review—because perfection

is unattainable, we should aim for a reasonable level of variance in case

outcomes and a 5% departure rate from neutrality appears, to us at least, well

within the bounds of reasonable expectations for complex and inherently

discretionary judicial proceedings.

One potential critique of this approach is that the departure rate from

neutrality that we derive is not a conventional stochastic error rate. To the

contrary, the large variance observed in plaintiffs’ success rates was associated

with ideologically uniform panels, and more often panels from the Democratic

end of the spectrum.212 Typically, the rationale that underlies acceptance of

stochastic error rates is that it is either impossible or extremely costly to reduce

them below a certain point.213 That is clearly not the case here, as a relatively

low-cost option exists for reducing the variance in case outcomes observed

across appellate panels—as several commentators have already advocated, a

rule barring ideologically uniform panels could simply be adopted. We view this

as a reasonable proposal if your principal objective is consistency. But as Ralph

Waldo Emerson once observed, “[a] foolish consistency is the hobgoblin of little

minds.”214 We believe that a risk exists here, if the tradeoffs are not adequately

considered, of falling into a narrow focus on protecting the “rule of law” above

all else.

Evaluating the potential tradeoffs necessarily implicates the other

institutional mechanisms that mediate the influence of judicial ideology. It

therefore requires that we work through them before a full assessment of the

tradeoffs can be conducted. Anticipating the fuller discussion below, we believe

that the enhanced check on executive branch policies provided by ideologically

uniform panels, in part because it is structurally bounded, has significant value

and minimal costs given that it has a moderating effect. To the extent that it cuts

off innovative policies, it will do so on a limited basis given the relatively low

frequency of such panels; on the other hand, such panels are substantially more

likely, on average, to provide an effective check on agency policies when they

stray significantly from statutory mandates. The legally centrist asymmetric

nature of judicial review limits the threat to “rule of law” principles while

enhancing the potential to protect against ultra vires executive branch policies.

B. Judicial Ideology as an Instrument of Political Moderation

The convergence we observe in the success rates of environmental plaintiffs

before Republican- and Democratic-majority appellate panels is a striking

result. We interpret it as evidence that the influence of judicial ideology was

largely neutralized in appeals during the Obama Administration.


213 Spitzer & Talley, supra note 13, at 645–48.

214 RALPH WALDO EMERSON, THE ESSAY ON SELF-RELIANCE 23 (1908).


Constitutionally, it reveals a mechanism by which the system of checks and

balances adjusts to presidential policies that are in tension with statutory

mandates. In essence, misalignment of presidential politics with a statute’s

mandate increases the influence of ideology on case outcomes because a judge’s

political sympathies will side either with the president or the statute. By contrast,

when presidential politics and statutory mandates are aligned judges will be

either indifferent, because their political sympathies favor neither the president

nor the statute, or will be pulled in opposing directions, because their political

sympathies are split between them. While this study centers on two

environmental statutes, which are aligned strongly with the Democratic party,

we believe that similar alignments and misalignments can occur with statutes

associated with the Republican party or conservative politics. Thus, a

Democratic administration’s implementation of a politically conservative

statute can be expected to heighten the likelihood of a Republican judge ruling

against the government. To our knowledge, this is the first time that the

interaction between presidential politics and judicial ideology has been

elucidated in this manner.

We believe that several reasons exist for the absence of a similar

convergence in the district court cases. First, because the influence of judicial

ideology in the district court cases is relatively small across both

administrations, the lower variance in case outcomes makes it harder to detect

statistically meaningful changes.215 By contrast, we observed a large drop in the

disparity in appellate case outcomes between panels dominated by judges with

opposing political affiliations from roughly 34% to 5%, between majority-

Democratic and majority-Republican panels across the two administrations.216

Moreover, essentially all of the convergence is attributable to majority-

Democratic panels; while success rates of environmental plaintiffs were

consistently about 18% before majority-Republican panels, they dropped from

52% to 20% before majority-Democratic panels.217 In other words, majority-

Democratic panels were much more deferential to the Obama Administration

than the Bush Administration.218 Indeed, we observe the opposite trend for cases

brought by non-environmental plaintiffs under the ESA, many of which directly

challenged ESA species protections: non-environmental plaintiffs prevailed

before majority-Republican panels at a higher rate than before majority-

215 In the NEPA cases, we do not observe significant differences in the success rates of

other plaintiffs either across administrations or between majority-Democratic and majority-

Republican panels. In the ESA cases, we find that the success rates of other plaintiffs

invert—they are relatively low before Republican judges during the Bush Administrations,

and they double during the Obama Administration, whereas their rates before Democratic

judges are essentially unchanged across the two administrations.

216 See supra Part III.B.

217 This convergence is reflected in our regression results, where the presidential

administration is a statistically and practically significant factor in the appellate cases under

both statutes. See supra Table 2.

218 If only the population of cases were changing, the success rates of plaintiffs might

change but this alone could not affect differences based on judicial ideology.


Democratic panels, and this disparity increased during the Obama

Administration.219 Although the small number of cases limits what we can infer

from these results, the pattern inverts for non-environmental plaintiffs because

their interests were opposed to both the principal mandate of the ESA and the

politics of the Obama Administration.

The alignment of interests between the judges, statutory mandates, and

presidential politics is captured by four basic scenarios reflected in our data,

namely, cases filed during each administration with either majority-Democratic

or majority-Republican appellate panels.220 Starting with the Bush

Administration, Republican judges were sympathetic to the Administration and

unsympathetic to the liberal goals of NEPA (both factors aligning against

environmental plaintiffs), whereas Democratic judges were sympathetic to the

goals of NEPA but unsympathetic to the politics of the Administration (both

factors aligning in favor of environmental plaintiffs). However, during the

Obama Administration, Republican judges were unsympathetic to NEPA’s

goals and to the politics of the Administration (both factors essentially neutral

towards environmental plaintiffs), whereas Democratic judges were

sympathetic to both (one factor favoring and the other opposing environmental

plaintiffs). As a consequence, the ideological commitments of the judges were

either split between the statutory mandate and the administration or neutral

towards them, which diminished the influence of judicial ideology.

The interaction we observe between presidential politics and judicial

ideology likely applies beyond NEPA and the ESA. However, empirical studies

of judicial review under other statutes, particularly those aligned ideologically

with Republican politics, must be conducted to substantiate this claim. In

addition, while the degree to which judicial review places a check on executive

branch policies will be greater when the politics of a presidential administration

diverge from the mandate of a statute, the vibrancy of that check will depend

strongly on the balance of judges with liberal or conservative views in each

circuit and their alignment with the mandates of the governing statute. From a

normative perspective, our data reveal that the influence of judicial ideology is

not per se reason for concern. To the contrary, it provides an inherently centrist

and moderating check on executive branch policies, at least as long as judicial

appointments are not heavily skewed toward one political party or the other.

While we have focused on differences between majority-Democratic and

majority-Republican panels, ideologically uniform panels, on average, tend to

favor plaintiffs more strongly than ideologically mixed panels.221 In our study,

219 During the Bush Administration, non-environmental plaintiffs won three out of

thirteen ESA cases (23%) before majority-Republican panels versus zero of five ESA cases

before majority-Democratic panels. During the Obama Administration, non-environmental

plaintiffs won four out of nine ESA cases (44%) before majority-Republican panels versus

one of nine ESA cases (11%) before majority-Democratic panels.


221 An all-Republican panel that rejects an environmental group’s NEPA challenge

exercises its authority passively by confirming the administration’s exercise of policy


their net effect was modest because they represent a small share of the total

number of cases. However, because the number of ideologically uniform panels

depends nonlinearly on the number of Republican and Democratic judges, they

could have a much greater impact if the ideological balance of federal judges

were upset significantly. As illustrated in Figure 3 below, the percentage of

ideologically uniform panels rises rapidly, from essentially 2% to 50% of the

panels, as the number of judges with a Republican (or Democratic) affiliation

rises from 20% to 80% of the population of appellate judges. Maintaining a

relatively even balance of Republican and Democratic judges is therefore of

critical importance for our findings to hold.222

Figure 3: Percentage of All-Republican Panels versus

Percentage of Republican Appellate Judges

judgment. Such decisions typically cannot push statutory policies in new directions. On the

other hand, an all-Democratic panel that rules in favor of an environmental group’s NEPA

challenge serves the checking function we have described above. Thus, this asymmetry

means that judicial intervention tends to push agency decisions toward the political middle.

There are no circumstances in which a court could reverse an agency on the ground that its

NEPA compliance was excessive. Such cases are possible under the ESA. See, e.g., Home

Builders Ass’n of N. Cal. v. U.S. Fish and Wildlife Serv., 268 F. Supp. 2d 1197, 1211 (E.D.

Cal. 2003) (invalidating critical habitat designation due to agency’s failure to identify

physical or biological features that were essential to the conservation of the species).

222 At the same time, even in the very unlikely scenario in which 80% of the judges were

appointed by one party, 50% of appellate panels will still include judges from each party.

See infra Figure 3.

01

02

03

04

05

0

Pe

rcen

t of A

ll-R

ep

ub

lican

Pa

ne

ls

20 24 28 32 36 40 44 48 52 56 60 64 68 72 76 80

Percentage of Republican Judges


In the near term, these dynamics show that judicial review can serve a

valuable checking function in environmental cases when an administration, such

as the Trump Administration, has an anti-regulatory outlook that conflicts with

long-standing congressional mandates written into environmental statutes.223

As the Senate confirms Trump appointees to the federal courts, however, this

checking function could weaken, as an increasing number of environmental

cases are heard by panels comprised of Trump, and other Republican,

appointees and the number of majority-Democratic panels declines. The extent

to which Trump Administration policies receive broad judicial deference will

depend not only on the number of new appointments, but also their distribution

across the federal circuits. The forty-one successful appointments made as of

June 24, 2019, to the appellate courts, for example, are relatively evenly

distributed across the federal circuits, with slightly higher numbers of

appointments in the Fifth (five), Sixth (six), and Ninth (six) Circuits.224 In many

cases, the new appointments replace retiring Republican judges in conservative

circuits, which will limit new appointees’ potential impact on the overall

balance of Republican and Democratic judges in the federal system.225 To the

extent that President Trump succeeds in making additional appointments,

particularly those in more liberal circuits that replace Democratic judges, future

Democrat administrations would be subject to review more often by Republican

appointees who would be more likely to overturn executive actions in tension

with statutes that reflect conservative values. Thus, while judicial ideology has

the capacity to moderate presidential policies by ensuring that they conform

with statutory mandates, the process of appointing and confirming federal

judges influences whether the heightened checks associated with judicial

ideology favor conservative or liberal statutes.

223 See, e.g., Michael C. Blumm & Olivier Jamin, The Trump Public Lands Revolution:

Redefining “The Public” in Public Land Law, 48 ENVTL. L. 311, 312–14, 314 n.4 (2018)

(referring to the theory that “President Trump’s hostility to environmental regulations is a

consequence of a systematic undervaluing or ignoring of the environmental benefits

provided by those regulations”); Anthony R. Raduazo, The CO2 Monetization Gap:

Integrating the Social Cost of Carbon into NEPA, 118 COLUM. L. REV. 605, 634–35 (2018)

(referring to “the Trump Administration’s open hostility toward . . . environmental

regulation”); Phillip Dane Warren, The Impact of Weakening Chevron Deference on

Environmental Deregulation, 118 COLUM. L. REV. ONLINE 62, 63 (2018) (“Trump and the

Republican Congress seem especially hostile to environmental regulation.”); Nadja

Popovich et al., 95 Environmental Rules Being Rolled Back under Trump, N.Y. TIMES (Dec.

21, 2019), https://www.nytimes.com/interactive/2019/climate/trump-environment-roll

backs.html [https://perma.cc/9FAN-MV8G]; Amanda Reilly & Sean Reilly, Court Losses

Pile Up for EPA, GREENWIRE (Aug. 13, 2018), https://www.eenews.net/stories/1060093967

[https://perma.cc/2T2E-5KT4].

224 List of Federal Judges Appointed by Donald Trump, WIKIPEDIA, https://en

.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Donald_Trump [https://

perma.cc/LNC8-5RYD].

225 Sullivan & DeBonis, supra note 4.


C. Inter-Circuit Difference in Case Outcomes

The circuit-level effects we observe at the appellate level are also

conditional—the frequency with which they occur depends on the distribution

of cases across circuits and the balance of Democratic- and Republican-

appointed judges in each circuit. Litigation under NEPA and the ESA,

fortuitously, provides a context in which such circuit-level effects are magnified

by the disproportionate share of cases that were filed in the Ninth Circuit, where

Democratic appellate judges were in the majority by a margin of 40% to 60%

during the period covered by our study. The large number of cases improved the

statistics but, more importantly, it led to the Ninth Circuit accounting for most

of the majority—and all-Democratic panels nationally. The geographic

distribution of cases further highlights the contingencies of circuit-level effects

and the importance of taking into account the circuit structure of the federal

judiciary and the ideological balance of judges within them.

The existing literature ignores systemic differences in the ideological

outlook of Republican and Democratic judges across circuits by focusing either

on a specific circuit or national trends.226 For example, a Republican judge in

the Fifth Circuit is likely to be more conservative than a Republican judge in the

Second Circuit.227 This oversight is particularly surprising given that there are

structural reasons for such systematic inter-circuit differences in judicial

ideology. In particular, the tradition of deferring to the senators for the state in

which a judgeship is held reflects an understanding that the politics and

ideological perspective of judges should, to some degree, be consistent with

those of the surrounding state.228 Yet, commentators typically assume that any

intrusion of a judge’s ideological views represents a threat to the “rule of law”

and little effort is made to distinguish between inter-judge and inter-circuit

sources of ideological variance.229 In short, much as there is value in legislative

experimentation, we believe that there is value in ideologically inflected

variance in judicial review that is grounded on the structure of the federal

circuits. Moreover, use of national statistics to assess the influence of judicial

ideology must take into account that such statistics will reflect both inter-judge

226 See, e.g., Sunstein et al., supra note 7, at 316–25, 331–33.

227 Id. at 331 fig.6.

228 See supra note 122 and accompanying text (discussing the blue slip practice).

229 See, e.g., Fischman, Estimating Preferences, supra note 13, at 782–83 (analyzing a

data set of asylum cases in the Ninth Circuit to show that the “consensus voting

model . . . has superior explanatory power compared to a sincere voting model,” and

attributing variance in case outcomes across judges to inter-judge, not inter-circuit

differences in ideology); cf. Stephen J. Choi & G. Mitu Gulati, Ranking Judges According

to Citation Bias (As a Means to Reduce Bias), 82 NOTRE DAME L. REV. 1279, 1301 (2007)

(“Ideological bias may also matter more for particular subject matter categories (civil rights

more so than tax law for example) and the degree of de-biasing we undertake should take

these differences into account.”).


and inter-circuit variation in case outcomes between Republican and

Democratic judges.

The factors that affect circuit-level statistics on case outcomes are threefold:

the volume of cases in the circuit, the balance of Republican and Democratic

judges in the circuit, and any systematic differences in judicial ideology, for

both Republican and Democratic judges, noted in the preceding paragraph. The

Ninth Circuit is an outlier with respect to the volume of cases and the ideological

balance of its appellate judges, which is weighted towards Democratic judges—

and many commentators believe that this liberal bias is systemic as well,230

which would cut across judges with either political affiliation. The volume of

cases and ideological balance of judges in a circuit can be amplified by the

combinatorics of three-judge panels.231 For example, because most circuits have

very few NEPA appeals and all-Democratic panels are relatively rare (about

12% of the cases), the Ninth Circuit for statistical reasons alone should account

for roughly half of the all-Democratic panels. Add to this the skew of the Ninth

Circuit towards Democratic judges and it is unsurprising that the Ninth Circuit

accounted for 83% of the appellate panels nationally with exclusively

Democratic-appointed judges.

The concentration of cases in the Ninth Circuit both magnified inter-circuit

differences in the rates at which environmental plaintiffs prevailed and skewed

the cases towards panels with more liberal judges. In particular, all-Democratic

panels, as reflected in our data and other studies, favored environmental

plaintiffs, most likely because each judge’s predilections were reinforced rather

than tempered by their colleagues.232 In addition, Ninth Circuit judges overall

may be more liberal than judges in other circuits,233 either because of the

230 See, e.g., James Lindgren, Examining the American Bar Association’s Ratings of

Nominees to the U.S. Courts of Appeals for Political Bias, 1989–2000, 17 J.L. & POL. 1, 28–

30 (2001) (detecting liberal bias in criteria used by the American Bar Association to assess

qualifications of judicial nominees).

231 See supra Part IV.A.

232 The statistics for the four combinations of judges on an appellate panel are as follows:

(1) all cases in the sample—environmental plaintiffs prevailed on at least one claim in 8%

of the cases before an all-Republican panel, 17% before a panel of two Republicans and one

Democrat, 26% before two Democrats and one Republican, and 39% before an all-Democrat

panel; (2) Bush Administration—plaintiffs prevailed on at least one claim in 5% of the cases

before an all-Republican panel, 20% before a panel of two Republicans and one Democrat,

42% before two Democrats and one Republican, and 41% before an all-Democrat panel; (3)

Obama Administration—plaintiffs prevailed on at least one claim in 12% of the cases before

an all-Republican panel, 13% before a panel of two Republicans and one Democrat, 9%

before two Democrats and one Republican, and 36% before an all-Democrat panel.

233 See, e.g., John Schwartz, ‘Liberal’ Reputation Precedes Ninth Circuit Court,

N.Y. TIMES (Apr. 24, 2010), https://www.nytimes.com/2010/04/25/us/25sfninth.html

[https://perma.cc/AQT9-FCDE]. But see Erwin Chemerinsky, The Myth of the Liberal

Ninth Circuit, 37 LOY. L.A. L. REV. 1, 1 (2003); Susan B. Haire, Judicial Selection and

Decisionmaking in the Ninth Circuit, 48 ARIZ. L. REV. 267, 283–85 (2006) (concluding that

while there is evidence that individual judges make decisions on ideological grounds, the

Ninth Circuit as a whole is not more liberal than other circuits).


selection process noted above or because there may be strength in numbers at

the circuit level that gives judges in the majority greater sway on panels. The

strong coefficient for the Ninth Circuit in our regressions support this

inference.234 Further, as the regression results for district court cases bear out

(plaintiffs were 1.7–2.5 times more likely to prevail at the district court level in

the Ninth Circuit), one would expect this ideological influence to filter down to

district court judges through precedent and their attentiveness to being

overturned on appeal. Moreover, these results cannot be attributed to an

ideological imbalance among the district judges because, unlike the appellate

judges, they were evenly split between Democratic and Republican appointees.

As the Ninth Circuit cases demonstrate, these structural effects are

magnified when one or a small number of circuits account for a disproportionate

share of the cases litigated under a statute. Whether this set of conditions skews

outcomes in a liberal or conservative direction, and how far, will depend on the

balance of Democratic and Republican appellate judges on the circuit(s).

Conversely, if cases are distributed relatively uniformly across circuits, perhaps

due to geographic factors or the absence of forum shopping, circuit-level effects

will be weak or disappear. These insights also provide new grounds for

understanding the special status often attributed to the Ninth Circuit. Our

findings suggest that the Ninth Circuit cannot be reduced to the ideological

balance of its judges or its size; the strong norm of unanimity and random

selection of appellate panels are critical mediating factors along with geographic

and other factors that determine the distribution of cases across federal circuits.

In combination with the influence of presidential politics, particularly their

alignment or misalignments with a governing statute, these circuit-level effects

can enhance or erode the likelihood of judicial review at the appellate level

checking agency action. While we have described the basic phenomenon, it

would be useful to model systematically how circuit-level effects are likely to

vary with the number of circuits in the federal system and their relative size,

both geographically and with respect to numbers of cases. The importance of

these factors also exposes the structural contingencies of judicial oversight and

how they mediate the influence of judicial ideology in administrative cases. In

doing so, it enhances our understanding of the institutional frameworks and

political forces that shape the effectiveness of the checks and balances provided

by an independent judiciary.

D. Insights into Contemporary Debates About the Structure of Federal

Courts

We have identified a mix of institutional and structural factors that, to

varying degrees, either restrain or magnify the influence of judicial ideology.

Specifically, the check that judicial review provides on executive branch

authority depends on the political alignments and misalignments between



judges, the statute under review, and the presidential administration in power.235

Judicial ideology will be a significant factor, and judicial review more likely to

limit agency action, when presidential politics are at odds with the politics of

the governing statute and the ideological outlook of the judge(s); its influence

will be nominal when presidential politics and statutory goals are in alignment.

These alignments and misalignments, in conjunction with the deferential

posture of judicial review, constrain the influence of judicial ideology to

moderating presidential policies towards a centrist interpretation of statutory

mandates. The same dynamic will cause judicial ideology to have a similar

moderating effect when agencies exceed rather than fail to meet statutory

mandates. The impact of this structural counterbalancing dynamic between

judges, statutory mandates, and presidential administrations can be enhanced,

as we observe in the Ninth Circuit, or moderated by the distribution of cases

across circuits and the ideological balance of the judges in them.

To demonstrate the importance of considering the expanded range of factors

that we have found to mediate the influence of judicial ideology, we reexamine

three prominent debates about the structure of the federal judicial system: (1)

recurrent proposals to split the Ninth Circuit into several smaller circuits; (2)

statutory provisions creating exclusive jurisdiction of certain cases in a specific

circuit or a specialized court; and (3) partisan schemes to dramatically expand

the number of federal judges in order to tip the scales decisively in favor of a

conservative agenda. These examples are not intended to be exhaustive; instead,

they illustrate the ways in which a broader understanding of how ideology

impacts judicial review can inform fundamental questions about the structure of

the federal judiciary and the process of making judicial appointments.

1. Anticipating the Consequence of Splitting the Ninth Circuit

Practitioners236 and politicians237 have developed numerous proposals to

divide the Ninth Circuit into several smaller circuits. Advocates have argued

that the court’s docket has become so large that it is preventing its judges from

235 See supra Part IV.B.

236 Compare Jennifer E. Spreng, The Icebox Cometh: A Former Clerk’s View of the

Proposed Ninth Circuit Split, 73 WASH. L. REV. 875, 877–78 (1998) (favoring the split), with

Aaron H. Caplan, Malthus and the Court of Appeals: Another Former Clerk Looks at the

Proposed Ninth Circuit Split, 73 WASH. L. REV. 957, 957 (1998) (opposing it).

237 See Travis L. Schilling, Note, Redefining the Waters of the United States: Did

Government Overreach Just Get Trumped?, 23 DRAKE J. AGRIC. L. 131, 145 (2018)

(referring to “the Republican-led movement in the Senate to split the [Ninth] circuit”); Mark

Brnovich & Ilya Shapiro, Split Up the Ninth Circuit—But Not Because It’s Liberal, WALL

ST. J. (Jan. 11, 2018), https://www.wsj.com/articles/split-up-the-ninth-circuitbut-not-

because-its-liberal-1515715542 [on file with Ohio State Law Journal] (describing

President Trump’s support for such a split); Diamond Naga Siu, Flake Hearing Airs

Arguments to Break Up 9th Circuit, POLITICO (Aug. 24, 2017), https://www.politico.com/

blogs/under-the-radar/2017/08/24/flake-hearing-ninth-circuit-242007 [https://perma

.cc/8K7K-GZZ3].


effectively, efficiently, and consistently238 resolving cases.239 Some claim that

the geographic expanse of the circuit impairs “collegial relations among circuit

judges [and] undermines their willingness to engage in good faith deliberations

over case outcomes.”240 In some instances, support for dividing up the Ninth

Circuit has come from states with smaller populations (and different political

values) than California, seeking autonomy from the dominance of California

judges,241 who are often perceived to be too liberal.242 As one commentator has

aptly expressed it, “the proposed split [of the Ninth Circuit] is a form of

gerrymandering intended to quarantine the court’s liberal judges in a smaller,

less powerful circuit.”243

While the ultimate impact of splitting the Ninth Circuit would depend on

the details of the proposal, our framework provides general insights into the

potential tradeoffs. Recall that we identified three central factors that mediate

the influence of judicial ideology on case results—the volume of cases, the

238 The theory is that smaller courts would require judges to keep track of fewer

decisions, thus reducing the chance of inconsistent rulings among panels. See Bryan Wright,

But What Will They Do Without Unpublished Opinions?: Some Alternatives for Dealing with

the Ninth Circuit’s Massive Caseload Post F.R.A.P. 32.1, 7 NEV. L.J. 239, 262 (2006).

239 David S. Law, How to Rig the Federal Courts, 99 GEO. L.J. 779, 789 (2011)

[hereinafter Law, Federal Courts] (claiming that proposals to split the Ninth Circuit “are

typically dressed in justifications of administrative necessity”); Stefanie A. Lindquist,

Bureaucratization and Balkanization: The Origins and Effects of Decision-Making Norms

in the Federal Appellate Courts, 41 U. RICH. L. REV. 659, 660 (2007). Among the

inefficiencies resulting from the current configuration is the need for Ninth Circuit judges to

travel long distances to hear cases. Frank Tamulonis III, Comment, Splitting the Ninth

Circuit: An Administrative Necessity or Environmental Gerrymandering?, 112 PENN ST. L.

REV. 859, 862 (2008). Some Ninth Circuit judges themselves have expressed this view. Anna

O. Law, The Ninth Circuit’s Internal Adjudicative Procedures and Their Effect on Pro Se

and Asylum Appeals, 25 GEO. IMMIGR. L.J. 647, 667 (2011) (referring to Judge O’Scannlain);

see also Crystal Marchesoni, “United We Stand, Divided We Fall”?: The Controversy

Surrounding a Possible Division of the United States Court of Appeals for the Ninth Circuit,

37 TEX. TECH L. REV. 1263, 1264–65 (2005) (“The obvious sheer enormity of this circuit is

causing many problems, namely: (1) waste of judges’ travel time and money (from a

geological standpoint); (2) case overload (from a population standpoint); (3) and a lack of a

clear and consistent manner in which to decide and interpret law (from an increased Supreme

Court reversal standpoint).”).

240 Lindquist, supra note 239, at 660. Some have asserted that the increased

communication and collegiality among judges of smaller courts will reduce the high rate of

reversal of Ninth Circuit decisions in the Supreme Court. Tamulonis, supra note 239, at 862.

241 Tamulonis, supra note 239, at 861.

242 Id. at 862–63. “Cases involving issues such as timber harvests in the Northwest,

fishing rights in Alaska, and the death penalty in California have angered many

conservatives.” Id. (citing Howard Mintz, GOP Closer to Splitting Up Left-Leaning 9th

Circuit Appeals Court, SEATTLE TIMES (Nov. 8, 2005), https://www.seattletimes.com/

nation-world/gop-closer-to-breaking-up-left-leaning-9th-circuit-appeals-court/ [https://

perma.cc/L7YY-CJKR]). For skepticism that splitting up the Ninth Circuit would reduce

the influence of “extremist judges,” see D.H. Kaye, On a Mathematical Argument for

Splitting the Ninth Circuit, 48 JURIMETRICS J. 329, 334 (2008).

243 Law, Federal Courts, supra note 239, at 789.


balance of Republican and Democratic judges in a circuit, and the political

orientation of the judges, liberal or conservative, in the circuit relative to those

in other circuits.244 All three factors could be affected by such a division.

Assume, for example, that the Ninth Circuit was divided into one circuit

consisting of the coastal states and a second circuit consisting of the inland states

along with Alaska, and that the existing judges were simply distributed

according to the location of their chambers. If this proposal were instituted

today, the balance of Republican and Democratic judges in each circuit would

differ substantially. For example, at the appellate level, 61% of the judges on

the coastal circuit would be Democratic versus 70% on the inland circuit.245 In

this context, about two-thirds of NEPA cases in the Ninth Circuit would be filed

in the coastal circuit if the patterns of NEPA litigation remained stable over

time. The new circuit structure would consequently result in NEPA cases being

heard by more Republican judges and fewer all-Democratic panels than if the

Ninth Circuit were retained in its current form. Moreover, because the number

of all-Democratic panels scales nonlinearly with the volume of cases,246 the

impact would be greater on the all-Democratic panels, which would constitute

21% of the panels in the coastal circuit versus 34% in the inland circuit.

Although we cannot know without additional information whether the

politics of the average judge in the two new circuits would differ substantially,

they could either reinforce or counteract the other effects. For example, if the

Senators from the affected states influenced the selection of nominees to ensure

that their views were congruent with state politics, one would expect the judges

in the coastal states to be more liberal, on average, than those in the inland

states.247 Under this scenario, the circuit-wide political bias would counteract

the effect from the higher proportion of Democratic judges in the inland circuit

and thus diminish the rightward shift in case outcomes associated with such a

division of the Ninth Circuit. This example illustrates how the existing

ideological balance of judges can, in effect, be reinforced or moderated

depending on the volume and geographical distribution of cases across circuits.

The fuller picture that emerges highlights the nonlinear nature of these

feedbacks and the complex ways in which the circuit structure of the federal

system mediates the impact of judicial ideology.


245 See The Judges of this Court in Order of Seniority, U.S. CTS. FOR NINTH CIRCUIT

(Jan. 2020), https://www.ca9.uscourts.gov/content/view_seniority_list.php?pk_id=000

0000035 [https://perma.cc/PTF5-GQLP].

246 See supra Figure 3.

247 See Historical Presidential Elections, 270 TO WIN, https://www.270towin.com/

historical-presidential-elections/ [https://perma.cc/C4JS-PTGH] (showing that since

2000, west coast inland states have primarily voted Republican in presidential elections, and

coastal states have voted Democrat).


2. The Tradeoffs of General Versus Limited Appellate Court

Jurisdiction

Appellate court jurisdiction is rarely limited to specific circuits. The most

notable—and still hotly debated—exception is the Federal Circuit, which

essentially has exclusive jurisdiction over appeals involving patent disputes.248

In the field of environmental law, several statutes contain provisions limiting

the jurisdiction over certain types of claims to a specific court. In the case of the

Clean Air Act (CAA), all challenges to national regulations must be filed in the

D.C. Circuit.249 However, little consistency exists across statutes, as illustrated

by the Clean Water Act (CWA), which lacks an analogous provision despite its

abundance of national implementing regulations.250 Typically, jurisdictional

restrictions, along with specialized courts, are created to manage the technical

complexity of the subject cases,251 to mitigate problems with doctrinal

uniformity and consistency (including those associated with forum

shopping),252 or to enhance the efficiency of judicial proceedings.253 To our

knowledge, the existing literature has not considered how such jurisdictional

limits affect the politics of judicial review or the judicial appointments process.

The closest commentary involves concerns about doctrinal rigidity, a common

critique of the Federal Circuit, but it focuses on particular judges and the

insularity associated with jurisdictional limits rather than broader structural

considerations.254

248 28 U.S.C. § 1295(a)(4) (2012). For discussion of the debate over whether creation of

such exclusive jurisdiction is an appropriate mechanism for promoting clearer and more

uniform patent law, see Jason Rantanen & Lee Petherbridge, Disuniformity, 66 FLA. L. REV.

2007, 2042 (2014).

249 42 U.S.C. § 7607(b) (2012).

250 See 33 U.S.C. § 1369(b)(1) (2012).

251 See, e.g., 28 U.S.C. § 1295(a)(4) (2012).

252 See Lauran M. Sturm, Rapanos and the Clean Air Act: Linking Wetland and Single

Source Determinations, 28 NAT. RESOURCES & ENV’T 27, 30 (2014); see also ROBERT L.

CHIESA ET AL., AM. BAR ASS’N STANDING COMM. ON FED. JUD. IMPROVEMENTS, THE UNITED

STATES COURTS OF APPEALS: REEXAMINING STRUCTURE AND PROCESS AFTER A CENTURY OF

GROWTH 215 (1989) (“[C]ases of nationwide significance should be subject to review by a

single, national forum. . . . [T]he principal benefit would lie in preserving nationwide

uniformity in a program administered by a single, national agency. These benefits could be

obtained by restricting the venue of judicial review of agency action, as is now done in some

environmental legislation.”).

253 See Marchesoni, supra note 239, at 1264–65.

254 See Edith H. Jones, Back to the Future for Federal Appeals Courts: Rationing

Federal Justice by Recovering Limited Jurisdiction, 73 TEX. L. REV. 1485, 1502 n.101

(1995) (reviewing THOMAS E. BAKER, RATIONING JUSTICE ON APPEAL: THE PROBLEMS OF

THE U.S. COURTS OF APPEALS (1994)) (arguing that “specialized courts also tend to become

parochial and in so doing may, like some administrative agencies, focus on their particular

‘constituencies’ rather than broader public interests,” and that “the area of law consigned to

a specialized court, having become too rarefied for most lawyers or laypersons to understand,

resists reform and innovation”). Professor Revesz has analyzed the relationship between the


Viewed through the lens of our framework, it is immediately apparent that

centralizing cases in a specific court carries a significant risk that it will elevate

the importance of judicial ideology. As we have shown, the influence of judicial

ideology is mediated by the volume of cases and ideological balance of judges

in a circuit—it rises when cases are concentrated in a circuit and with greater

imbalances in the ideological outlook of the judges.255 In our data, we observed

these effects in the Ninth Circuit, which was dominated by Democratic judges

and accounted for a disproportionate share of the cases heard nationally.

Jurisdictional limits go further because they concentrate cases in a single court

and, in doing so, eliminate the averaging across circuits with different mixes of

judges. The absence of jurisdictional restrictions also makes it much harder for

politicians to influence case outcomes through the judicial appointments

process—the ideological balance would have to be shifted on multiple circuits,

as opposed to just one.

Limiting challenges to national regulations under the CAA to the D.C.

Circuit provides a concrete illustration of the tradeoffs and how they can vary.

In the spectrum of issues that range from the purely local to the national, the

CAA regulations are explicitly national in scope.256 This simplifies the analysis

because it effectively neutralizes concerns about federal courts fairly reflecting

local values. In this light, the case for centralization appears to lack any

countervailing considerations—except that it overlooks the ways in which

circuit structure mediates the balance of Republican and Democratic judges that

hear the cases. Restricting jurisdiction to the D.C. Circuit reduces the range of

judges hearing the cases and, much like the Supreme Court, elevates the

significance of individual judicial appointments—both because each

appointment carries greater weight and because controlling the ideological

balance on a single court is easier. Further, appellate courts, unlike the Supreme

Court, hear cases as three-judge panels and, as we have seen, the frequency of

ideologically uniform panels increases nonlinearly as the proportion of

Republican or Democratic judges rises above 50%.257 As a consequence,

concentrating cases in a single circuit increases the likelihood that the checks

provided by judicial review will occur disproportionately from a single political

camp, or that the dominant ideological perspective will shift from one side to

the other with the political party that has control over judicial appointments. The

volume of cases and number of judges will determine the frequency of the

structure of our system of administrative law and the arguments for and against specialized

courts. Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System,

138 U. PA. L. REV. 1111, 1115 (1990) (arguing that “in the context of judicial review of

administrative action, there should be a presumption against establishing specialized courts

to replace the functions of the regional, generalist courts of appeals. The arguments that

counsel against specialization in this context, however, do not apply to specialized courts

that are subject to review by the generalist courts of appeals”).


256 See 42 U.S.C. § 7607(b) (2012).



resulting doctrinal changes, moderated by precedent, and the impact on a central

rationale for jurisdictional restrictions—doctrinal uniformity. Limiting

jurisdiction in this manner circumvents the decentralization of the federal court

system that operates as a buffer to political forces. While the increased

efficiency and efficacy may be worth the loss, the increased exposure to

congressional politics and escalating battles over judicial appointments should

also be factored into such jurisdictional decisions.

3. Misconceptions About Ideologically Driven Court Packing

If the two preceding examples highlight the nuances and pitfalls of circuit

structure, recent calls to pack federal courts with conservative judges illustrate

its resilience to such baldly partisan schemes. As noted above, a massive

expansion of the federal judiciary was recently proposed, in all seriousness, by

Steven Calabresi.258 Some commentators have associated such proposals, not

unreasonably, with Franklin Roosevelt’s ill-fated court-packing plan of 1937.259

One skeptical observer has noted that “it is not unfair to conclude that court-

packing is a major objective of [such a] proposal, even if it is not the only

one.”260 This begs the question of whether, and under what conditions, a court-

packing plan could succeed or, to put it in the terms explored in this Article,

whether it would upend the mediating effects that the circuit structure of the

federal courts and mechanics of judicial decision making have on judicial

ideology.

258 See supra note 211 and accompanying text.

259 See, e.g., Jeff Shesol, Would Trump Consider a Court-Packing Scheme?, NEW

YORKER (Dec. 5, 2017), https://www.newyorker.com/news/news-desk/would-trump-

consider-a-court-packing-scheme [https://perma.cc/M4GG-GXD8] (“[Steven] Calabresi’s

proposal owes a great, if unacknowledged, debt to Franklin Roosevelt’s failed attempt to

increase the size of the Supreme Court from nine Justices to fifteen . . . .”); Ilya Somin, The

Case Against Court-Packing, WASH. POST (Nov. 27, 2017), https://www.washington

post.com/news/volokh-conspiracy/wp/2017/11/27/the-case-against-court-packing/?ut

m_term=.4e668627074b [https://perma.cc/Y5WK-5MKB]. Republican legislators have

introduced legislation to increase the size of the federal judiciary. See generally Judiciary

ROOM Act of 2018, H.R. 6755, 115th Cong. (bill introduced by Rep. Darryl Issa that would

add fifty-two new district court judgeships). Democratic politicians have also suggested

expanding the number of federal judges, but their efforts have focused on the Supreme Court.

See Cara Bayles, Is the High Court Due for a Revamp? Dems Say Yes, LAW360 (June 25,

2019), https://www.law360.com/environmental/articles/1171768/is-the-high-court-due-

for-a-revamp-dems-say-yes?nl_pk=6823ade7-090a-4d45-b28e-d8fdd4699435&utm_

source=newsletter&utm_medium=email&utm_campaign=environmental [on file with

Ohio State Law Journal]; Jordan Fabian, Trump Dismisses Court Packing: ‘It Will Never

Happen,’ HILL (Mar. 19, 2019), https://thehill.com/homenews/administration/434761-

trump-dismisses-court-packing-it-will-never-happen [https://perma.cc/4BB3-SU9Y].

260 Somin, supra note 259; see also Shesol, supra note 259 (asserting that the Calabresi

plan reflects conservatives’ view that the institutions of government are “territory to be

seized and held by whatever means”).


Even though the Calabresi plan appears farfetched insofar as it calls for at

least a 36% increase in the number of federal judges,261 it nevertheless appears

to be calibrated, knowingly or not, to overcome the inherent inertia of the

appointments process. Although the Trump Administration has succeeded in

accelerating the appointments process, these efforts have resulted, at the time of

this writing, in the appointment of forty-one circuit court judges.262 This is

undoubtedly a significant number of judgeships, but they are spread over

thirteen circuits. At least for now, about 40% of the appointments affected the

balance of Republican and Democratic judges on a circuit, as the departing

judges in 60% of the cases were Republican appointees.263 One of the central

reasons for this pattern is that judges can delay their retirement until the party

with which they are affiliated is in power, a dynamic that may be particularly

true now given the polarizing politics of the Trump Administration. This leaves,

as Calabresi apparently recognizes, a major expansion of judgeships as the only

viable option for decisively shifting the ideological orientation of federal judges.

The breaks on the impact of judicial ideology may weaken if Trump

appointments reverse the balance of a significant number of circuits.264

Yet, even if the Republicans succeeded with a plan like Calabresi’s, the

random appointment of three-judge panels would provide some ballast. For

example, if Republican judges occupied 80% of the appellate judgeships, 50%

of the panels would still have at least one Democratic judge, assuming that the

balance of Republican and Democratic judges was consistent across circuits.265

If, however, Republicans focused on specific circuits, the dominance of

Republican judges could be much greater, with essentially no all-Democratic

panels and few majority-Democratic panels hearing cases in most circuits.

Further, plaintiffs would likely be far more selective in where they filed cases,

which could exacerbate the inter-circuit differences we already observe in the

implementation and interpretation of statutes under NEPA and the ESA. It is

also important to recognize the limits of judicial review noted above, namely,

that Democratic administrations would be largely immune to judicial review to

the extent they operated within the clear bounds of their statutory authority.266

261 CALABRESI & HIRJI, supra note 211, at 21.

262 List of Federal Judges Appointed by Donald Trump, supra note 224.

263 Adam Feldman, Changes to the Federal Courts: Trump’s Most Significant and

Lasting Legacy, EMPIRICAL SCOTUS (Oct. 14, 2019), https://empiricalscotus.com/2019/

10/14/changing-the-federal-courts/ [https://perma.cc/7KY4-DNRD] (showing retired

judges’ appointment party).

264 As of May 2019, President Trump’s appointments had flipped the Third Circuit to

Republican-majority status and was “nearing potential flips” in three others (the Second,

Fourth, and Eleventh). Tom McCarthy, All the President’s Judges: How Trump Can Flip

Courts at a Record-Setting Pace, GUARDIAN (May 11, 2019), https://www.the

guardian.com/law/2019/may/11/trump-judge-nominees-appointments-circut-court-flip

[https://perma.cc/VC35-LQV8].


266 The degree to which a Republican-dominated judiciary could constrain agency action

and discretion will also necessarily depend on the nature of the statute that provides the


More importantly, given that most cases involve challenges premised on

inadequate agency action, the impact of stacking the courts would be

asymmetric—it would be most effective in protecting Republican

administrations against claims that they were falling short of statutory mandates.

As these numbers illustrate, the transformation required goes far beyond

anything ever contemplated, including Roosevelt’s infamous court-packing

plan. However, the structural sources of resilience in the judicial system on

closer analysis demonstrate that more modest efforts are unlikely to have a

sizeable impact because judges have control over the timing of their retirements

and this naturally spreads judicial openings across administrations, and

geographically over circuits, in ways that allow relatively modest shifts in the

balance of Republican and Democratic judges. The system is not beyond

breaking, as demonstrated by the heightened sensitivity of ideologically uniform

panels to the volume of cases and ideological balance of judges, but the large

scale of the federal courts and their circuit structure are powerful mediating

elements.

V. CONCLUSION

The political controversies surrounding judicial review and appointments of

federal judges overstate the influence of ideology in judicial opinions and

presume that it is bad per se. The empirical study presented above shows that

the influence of judicial ideology is of secondary importance in most cases and

that when it is a significant factor in case outcomes, judicial ideology typically

moderates executive branch policies towards centrist positions consistent with

statutory mandates. We propose a novel framework that explains these

dynamics and the contingencies that can enhance them as well as the conditions

under which the limited but positive influence of judicial ideology can be

seriously compromised.

authority for the challenged decisions. As noted above, NEPA and the ESA differ in that

judicial decisions under NEPA can uphold agency actions that give short shrift to NEPA

procedures but cannot force agencies (under a Democratic administration) to curtail their

NEPA responsibilities. See supra note 221. Judicial review of agency decisions under the

ESA can narrow the scope of agency authority to take protective actions as well as forcing

more aggressive regulatory action. See supra note 144 and accompanying text.

judicial ideology as a check on executive power...may 09, 2020 · trump ’s recent ... between...

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